Warning a patient's intended victim while preserving testimonial privilege: a statute to regulate all psychotherapists.

• Author: Coleman, Phyllis
• Position: Florida

In Guerrier v. State, 811 So. 2d 852 (Fla. 5th DCA 2002), a case of first impression in Florida, a psychiatrist was required to testify that a patient told him he was going to kill his former girlfriend. Believing the woman was in danger, Dr. Donny Baskaran instructed his nurse--who also heard the statements--to warn the intended victim. During a trial for aggravated stalking, the judge allowed Baskaran to take the stand over the objection of the patient, Francois Guerrier, that communications between the two, including the threat, were covered by the psychotherapist-patient privilege. After being convicted, he appealed, but the Fifth District Court of Appeal affirmed. (1)

This article briefly explains and distinguishes confidentiality and privilege and asserts that an apparent misunderstanding of these concepts led to the holding in Guerrier that warning a patient's intended victim effected a waiver of the privilege. This article discusses the opinion and demonstrates why this conclusion is wrong; and points out that Florida statutes provide different rules regarding confidentiality and privilege for a psychiatrist, psychologist, social worker, or other mental health counselor. The article suggests solutions to both the issue raised in Guerrier and the confusion caused by discrepancies in the various laws, and proposes a statute that should be adopted for all psychotherapists.

Confidentiality and Privilege

Although related, confidentiality and privilege are not the same and must be evaluated separately. Confidentiality requires that the psychotherapist never divulge what he or she is told during treatment while the statutory privilege permits the patient to prevent a therapist from testifying in a legal proceeding about these confidential communications.

* Confidentiality

Psychiatrists are obligated to keep confidences based on the patient's right to privacy and the need for complete honesty to achieve the full benefits of therapy. (2) Nevertheless, following Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)--the landmark case that established a therapist's duty to protect a patient's intended victim (3)--Florida legislators recognized there might be instances where it becomes necessary to betray confidences. Consequently, they first added a dangerous patient exception to the confidentiality requirement in [section] 456.059 for psychiatrists, and later to [section] 490.0147 for psychologists, and [section] 491.0147 for social workers and other mental health professionals. Surprisingly, despite the fact that the problem is the same for all these professionals, the statutory treatment is different. (4)

Because the therapist in Guerrier was a psychiatrist, the court turned to [section] 456.059. This section gives the doctor who believes a patient will hurt someone within the near future discretion to disclose threats "to the extent necessary" to warn the targeted individual. (5) Doing so obviously represents a breach of confidentiality, but Florida lawmakers determined the need to safeguard potential victims outweighed the benefits of not revealing these statements. The American Psychiatric Association agrees. (6) Therefore, legally and ethically, the physician has the option of warning potential victims, even though by doing so the physician will be breaching a confidence. (7)

* Privilege

The patient has a privilege to prevent his psychotherapist from testifying in a legal proceeding (8) about confidential communications made for the purpose of "diagnosis or treatment" of a "mental or emotional condition." (9) Privileges, which represent "an exception to the general rule that all relevant evidence is admissible," (10) are grounded in the determination that society benefits more from protecting the relationship than from compelling the testimony. (11) Thus, in enacting [section] 90.503, legislators recognized disclosing a patient's confidences in a courtroom could be "a substantial factor in restricting the patient's freedom in providing essential information to the doctor for treatment." (12) Accordingly, to encourage people to seek help, and to increase the efficacy of treatment, patients are granted the right to preclude their therapists from discussing their communications in any judicial, legislative, or administrative action.

However, similar to confidentiality, privilege is not absolute. Section 90.503, which creates the privilege, also specifies three circumstances to which it does not apply: 1) attempts to involuntarily hospitalize a person for mental illness, (13) 2) court-ordered examinations, or 3) lawsuits in which a patient relies on his or her mental or emotional condition as an element of a claim or defense. (14) Obviously, warnings to potential victims do not fall within any of these enumerated exemptions and they should not be implied because, where lawmakers create specific statutory exceptions, judges "may ... infer that 'had the legislature intended to establish other exceptions it would have done so clearly and unequivocally.'" (15) Thus, the patient should be able to stop a psychiatrist from discussing the patient's threat in court. (16)

Guerrier v. State

The Guerrier court disagreed but its reasoning was flawed.

First, unlike confidentiality under [section] 456.059, the statutory privilege in [section] 90.503 does not include a dangerous patient exception that would let a physician testify without consent. Contrary to the holding in Guerrier, absent such an exception, a psychiatrist satisfies his or her obligations by informing either the...