Wrapped in Silence: Psychotherapists and Confidentiality in the Courtroom

• DOI: 10.1177/0306624X00441004
• Published date: 01 February 2000
• Author: Brigitte Schmidl-Mohl,Elisabeth Wagner,Brigitte Schmid-Siegel,Karin Gutiérrez-Lobos
• Date: 01 February 2000
• Subject Matter: Journal Article

InternationalJournalofOffenderTherapy and Comparative Criminology

PsychotherapistsandConfidentiality

Wrapped in Silence: Psychotherapists

and Confidentiality in the Courtroom

Karin Gutiérrez-Lobos

Elisabeth Wagner

Brigitte Schmidl-Mohl

Brigitte Schmid-Siegel

Abstract:The impactof theAustrian PsychotherapyAct, which,in contrastto legalprovisions

in the United States, does not providefor any exceptions to breach confidentiality,is compared

with the effectsof U.S. law on dealing with confidentiality. The authors investigated the impact

of this law in light of threecommon situations in psychotherapy that may jeopardize strict con-

fidentiality:treating potentiallydangerous patients,givingtestimony,and servingas apsycho-

therapist in prison. Under the strict provisions of the Austrian PsychotherapyAct, a breach

may be excusable in the case of a highly probabledanger, but Austrian psychotherapists can-

not be obliged to serve as witnesses or an experts in civil or criminal cases, as American psy-

chotherapists can. Psychotherapy in prison, whererelease is contingent on the success of the

therapy and the divulging of information could be in the interests of the patient as well as the

court and the public, requires a modifieddealing with confidentiality.

Almost a century ago, Freud (1905/1971) pointed out the importance of the thera-

pist’s duty of discretion about the insights emerging from access to the uncon-

scious. Since then, privacy and confidentiality havebeen the cornerstones of the

psychotherapeutic relationship (e.g., Dubey, 1974; Greenson, 1988; Helmchen,

1998; Plaut, 1974; Sands, Hinnefeld, Rowers, & Higuchi, 1997; Shuman, Weiner, &

Pinard, 1986) and an essential requirement within the therapeutic process. Psy-

chotherapists have ethical and legal obligations to keep their patients’ secrets

(Smith, 1986). Patients usually expect confidentiality (McGuire, Tial, & Blau,

1985; Schmid, Appelbaum, Roth, & Lidz, 1983; Weiss, 1982) and would react

negatively to breaches (Van de Creek, Miars, & Herzog 1987). “When entering

into a therapeutic relationship, patients relinquish their personal feelings,

thoughts and beliefs in exchange for the prospect of therapeutic understanding

and assistance” (Smith-Bell & Winslade, 1994, p. 183). The disclosure of per-

sonal information makes them vulnerable to harm if third parties gain access to

such information. Even courts have acknowledged the importance of confidenti-

ality for psychotherapy to be effective: “The mere possibility of the disclosure of

facts, emotions, memories, and fears, i.e. of confidential communications, may

impede development of the relationship necessary for successful treatment”

(Jaffe v. Redmond, 1996, quoting United States v. Trammel, 1980).

International Journal of Offender Therapy and ComparativeCriminology, 44(1), 2000 33-45

2000 Sage Publications, Inc.

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