The Therapist-Patient Privilege Challenged
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* Joel Watts
* Joy Stankowski

## Psychotherapy-Patient Privilege Upheld in a Civil Action in Which Physical, Not Emotional, Injury Was Alleged

In *Sims v. Blot*, 534 F.3d 117 (2nd Cir. 2008), the Second Circuit Court of Appeals considered whether a litigant had waived his psychotherapist-patient privilege in responding to questions at deposition. The court considered whether the inmate's claim of “garden-variety,” or nonpathologic, emotional injuries sustained during an alleged assault by correctional officers would be enough to cause a waiver of his privilege. The inmate was found not to have waived his privilege. Basing its decision largely on the U.S. Supreme Court case of *Jaffee v. Redmond*, 518 U.S. 1 (1996), and the D.C. Circuit Court of Appeals case of *Koch v. Cox*, 489 F.3d 384 (D.C. Cir. 2007), the court found that garden-variety emotional damage claims are not enough to sustain a waiver of the psychiatrist-patient privilege.

#### Facts of the Case

On December 20, 1999, Nathaniel Sims, an inmate at New York's Correctional Facility at Ossining (Sing Sing Prison), underwent a routine strip search by correctional officers. He contended that respondent officers Mike Blot and Francisco Caraballo physically assaulted him without provocation or justification. The respondents contended that Mr. Sims started the altercation. Mr. Sims filed a § 1983 complaint as a *pro se* litigant in February 2000. He asked the court to appoint him counsel, and the district court told Mr. Sims that he would be permitted to request assignment of counsel again, after he submitted a copy of the transcript of his deposition.

During his deposition, Mr. Sims said that upon entering a frisk area at the prison on December 20, 1999, he and Officer Blot “had a few words” based on a previous confrontation. He alleged that Officer Blot threw him on the floor and other officers began punching him. Officer Caraballo yelled out, “You hit an officer! I’ll kill your effen' behind,” and while holding a knife, swung down toward Mr. Sims’ head, cutting him. Mr. Sims was shackled and taken to the emergency room where he received stitches. He said his confrontation with Officers Blot and Caraballo a week earlier occurred when he “spoke up” while Officers Blot and Caraballo were “beat[ing] up” a fellow “crazy inmate.” The officers placed Mr. Sims behind a glass partition because they alleged that he threatened to throw liquid detergent on them. He broke the glass, cutting himself, and was then sent to the psychiatric satellite unit (PSU) for one week. Later in his deposition, Mr. Sims said that previously he had been housed on the PSU. He added that before his assault on December 20, 1999, he had complained at least five times to a mental health nurse about being under stress due to officers’ threats to harm him. When asked initially about his injuries, however, he listed only physical ones. When asked if he suffered any mental injuries, he said, “I wouldn’t say that I suffered mental injuries as a result of this, but I do think about it continuously …I dream about it” (*Sims*, p 124). He said that the fear of being assaulted again by officers had exacted an “emotional toll.”

Shortly after Mr. Sims was granted the appointment of counsel, defendants requested production of his psychiatric records. His attorneys’ objection that the records were protected by privilege was denied on the grounds that his alleged fear of all knives as the result of the defendants’ conduct was not a garden-variety emotional distress claim. The attorneys then informed the court that they did not intend to place his mental or emotional state at issue and were therefore withdrawing all non-garden-variety emotional distress claims against the defendants. The district court ruled that Mr. Sims’ deposition constituted a waiver of his privilege, and he could not later “unring the bell.” They granted a disclosure order on February 1, 2006. Mr. Sims then petitioned the Second Circuit Court of Appeals for review under a writ of *mandamus*.

#### Ruling and Reasoning

The Second Circuit reversed the disclosure order, stating that the district court had abused its discretion by ordering Mr. Sims to disclose mental health records. The court cited a decision in *Koch v. Cox*, 489 F.3d 384 (D.C. Cir. 2007), by the D.C. Circuit Court of Appeals that distinguished garden-variety emotional distress from “any specific psychiatric injury or disorder, or unusually severe distress.” The court agreed with the *Koch* court on several grounds. A plaintiff does not forfeit therapist-patient privilege by claiming depression or anxiety for which he does not seek damages. Furthermore, he may withdraw all claims of emotional distress to avoid forfeiting privilege. In addition, the privilege is not overcome simply because the defendant puts the plaintiff's mental state at issue. The court further noted that the district court had failed to consider fairness factors, such as Mr. Sims’ statements about his emotional distress, which were made while he was a reluctant *pro se* litigant. In addition, Mr. Sims did not claim damages for those emotional disturbances, even after respondents introduced the subject during deposition. The court also noted that he had renounced and withdrawn any claim of mental injury or non-garden-variety emotional injury, and no part of his deposition would be introduced into evidence unless respondents requested it.

The court also cited the landmark U.S. Supreme Court case *Jaffee v. Redmond*, 518 U.S. 1 (1996), in which the Court ruled that federal courts are required to recognize that confidential communications between licensed psychotherapists (including a licensed social worker engaged in psychotherapy) and their patients are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. The *Jaffee* Court cited “wide agreement that confidentiality is the sine qua non for successful psychiatric treatment.” The *Jaffee* Court ruled that, if not waived, the psychotherapist-patient privilege was to be upheld without being subjected to a case-by-case balancing analysis of evidentiary needs versus the litigant's privacy interests. They stated, “An uncertain privilege, or one which purports to be certain but results in a widely varying application by the courts, is little better than no privilege at all” (*Jaffee*, p 18).

The court also rejected the respondents’ alternative arguments for upholding the disclosure order. The respondents contended that Mr. Sims’ allegation of improper use of force raised the question as to whether he started the fight “due to uncontrolled aggression, a persecution complex, or some other psychological problem.” The court pointed out, however, that if he had started the fight, the respondents would not have been liable, regardless of whether he was motivated by any mental condition. The court said that if a party forfeits his psychotherapist-patient privilege simply because he alleges or implies that an attack on him was unprovoked, the respondent could lose the privilege, too. The court also rejected the respondents’ notion that “anyone” seeking damages for “pain and suffering has waived the psychiatric privilege because the records might conceivably disprove the experience of pain and suffering” (*Sims*, p 130). The court pointed out that disclosure, rather than protection of confidentiality, would become the norm.

#### Discussion

This case further defines the boundaries and scope of privilege. In *Jaffee*, the U.S. Supreme Court said that the “principles of common law…in the light of reason and experience” permitted testimonial privileges to be extended to include the psychotherapist-patient privilege, under Rule 501 of the Federal Rules of Evidence. The court added that the psychotherapist-patient privilege “promotes sufficiently important interest to outweigh the need for probative evidence.” The court reasoned that successful psychotherapy depends on an atmosphere of trust, and the possibility that confidential communications could be disclosed would impede the development of the therapeutic relationship. The court also recognized that a privilege serves the public interest, because the mental health of citizens is “a public good of transcendent importance.” In support of this notion, they noted that all 50 states have already enacted some form of psychotherapist-patient privilege.

In 1970, the California Supreme Court ruled on the question of psychotherapist-patient privilege in the famous case *In re Lifshutz*, 467 P.2d 557 (Cal. 1970). Although the question before the state supreme court was whether the psychiatrist or the patient “owned” the privilege (they ruled the patient does), the state supreme court said that when a patient raises the issue of mental health in litigation, “trial courts should properly and carefully control compelled disclosures in this area in light of accepted principles” (*Lifschutz*, p 561). The California Supreme Court recognized that when a patient discloses a history of mental health problems in the context of litigation, not all aspects of the patient's mental health treatment would necessarily be relevant to the claims that are sought. Patients or psychotherapists may apply to the trial court to limit the scope of the disclosure and therefore protect non-litigation-relevant private information from being disclosed.

In *State v. Andring*, 342 N.W.2d 128 (Minn. 1984), the Supreme Court of Minnesota extended a patient's privilege to group psychotherapy sessions. The court stated that mandatory child abuse reporting statutes could abrogate the privilege to the extent that only information required in a maltreatment report is admitted into evidence. This further supports the legal precedent of maintaining as much of a patient's confidentiality as is possible, without unduly hampering the courts from obtaining probative information. The court echoed other courts’ views of the importance of maintaining confidentiality rights of patients by recognizing the essential nature of confidentiality as a tool in the therapeutic process and extended this protection beyond traditional individual therapy to group settings.

It is evident that courts have long recognized the importance of confidentiality in the doctor-patient relationship, but it presents them with a challenge when confronted with their fact-finding responsibilities. Courts have been inconsistent in their rulings on the extent of psychotherapist-patient privilege. This ruling in *Sims* indicated that the patient's privilege to retain confidentiality is of such importance that it is not to be overcome by probative evidentiary needs when an unrepresented witness raises the question of mental distress during deposition. Furthermore, a plaintiff withdrawing claims of emotional injury can maintain the privilege. This, along with the U.S. Supreme Court's ruling in *Jaffee v. Redmond*, suggests that courts should err on the side of favoring the protection of patients’ privacy interests involving communications with their mental health clinicians.

*   American Academy of Psychiatry and the Law