When in 1991 a small-town police officer tragically shot a man she
perceived as a danger to another man, psychiatrists could little suspect that
the incident would give rise to a landmark court ruling.
When the relatives of the dead man sued the officer and her employer in
federal court for violating his civil rights, they sought notes from the
officer's psychotherapy sessions after the incident to bolster their claims of
In a 7-2 decision in June 1996, in Carrie Jaffee, Special Administrator
for Ricky Allen Sr., Deceased, Petitioner v. Mary Lu Redmond et al.
(commonly known as Jaffee v. Redmond), the Supreme Court rejected the
effort to obtain the notes and established a psychotherapist-patient privilege
that protects this type of communication from compelled disclosure in federal
"The Supreme Court went far beyond the laws of most states by
creating an absolute privilege," said Paul Mosher, M.D., a member of
APA's Corresponding Committee on Confidentiality.
The court based its decision, in part, on the fact that every state had
established varying degrees of protection for psychotherapist-patient
communications, well beyond protections recognized for physician-patient
"It was a big surprise that the Supreme Court had taken this
development seriously," Mosher said.
The decision added to the privileges recognized by the court, which
previously included the attorney-client privilege and spousal
The privilege, extended to psychiatrists, psychologists, and licensed
social workers, was justified by the need for confidentiality for
psychotherapy to succeed, according to the court. "The likely
evidentiary benefit that would result from the denial of the privilege is
modest," the ruling stated.
Although legal scholars describe Jaffee's central
psychotherapist-patient privilege as solid, if largely untested, the extent of
that right remains undefined. The court anticipated the privilege would be
defined by future cases when it noted in its decision that "it is
neither necessary nor feasible to delineate its full contours in a way that
would `govern all conceivable future questions in this area.' "
One area of particular interest to psychiatrists is the applicability of
the privilege to the prescription of psychoactive drugs, an increasingly large
part of their practice. Courts have yet to answer clearly whether prescription
writing falls under the psychotherapist-patient privilege. Melissa Nelson, a
professor of law at the Hastings College of Law at the University of
California, said that confidentiality is critical to realize the benefits of
talk therapy, but, in her opinion, medications work regardless of
confidentiality. Without a ruling, it is unclear whether medications are
covered under Jaffee.
Psychiatry advocates point out that psychopharmacologic treatments are
effective only if patients visit psychiatrists and talk to them about their
Another area of contention is whether the psychotherapist-patient privilege
includes a so-called dangerous-patient exception, which would remove
protection of the patient's communications with a therapist from forced
disclosure in open court if the therapist has issued a warning to a third
party that the patient threatened him or her in therapy.
Federal appeals courts have issued contradictory rulings on the
dangerous-patient exception but the Supreme Court has yet to consider the
Although the Jaffee decision was precedent setting, the daily
practice of psychiatry was left "completely unaffected" by the
decision, Mosher said, because most psychiatrists never appear in federal
court. However, the decision affected a variety of areas outside of the
courtroom, including the attitudes of mental health clinicians in general
toward communication with patients.
"It made mental health care providers aware of the importance of this
privacy," Mosher said. "Many psychiatrists didn't realize the
importance of this privilege, and some still don't."
One area quickly affected was federal health information privacy
regulations. In the years immediately after Jaffee, federal officials
added new privacy protections specifically for psychotherapy information as
part of their implementation of the Health Insurance Portability and
Accountability Act (HIPAA). The HIPAA regulations make it illegal for an
insurer to condition the sale of a policy or payment of claim on a patient's
agreement to allow disclosure of psychotherapy notes.
The HIPAA psychotherapy-specific privacy regulations, proposed in the 1990s
and put into effect in 2003, were directly based on the Jaffee
privilege, according to Peter Swire, a Clinton administration attorney and
lead White House coordinator for HIPAA implementation.
"It was clear that special provisions were needed in the wake of
Jaffee," Swire told Psychiatric News.
Although numerous groups—including AIDS activists and abortion-rights
supporters—clamored for special HIPAA privacy protections, the only
category of sensitive information created by HIPAA covered psychotherapy
notes, Swire said.
The HIPAA decision regarding psychotherapy notes is likely to expand
further as the federal role in funding and providing mental health care
increases, said Swire, a law professor at Ohio State University.
Another area in which Jaffee's impact is likely to be felt is in
efforts to strengthen federal health information technology laws. The primary
bill (HR 4157) under consideration could take away heightened mental health
care protections now in the law, according to APA.
The high sensitivity of mental health records—as recognized in the
HIPAA privacy rule and many state laws—requires additional protections
for such records in addition to those for general medical records. APA
officials are concerned that early versions of the bill would weaken some
"Questions have been raised about whether HIPAA's privacy approach
should be used for a new health information technology system," said
Paul Appelbaum, M.D., chair of the APA Council on Psychiatry and Law and a
former APA president. "Jaffee has been recruited to argue that
new rules must maintain a high level of protection for communications between
therapists and their clients."
Later versions of the bill better clarified that patient privacy must
remain a critical component of patient care within a health information
technology (HIT) infrastructure.
"APA has sought and will continue to seek the strongest possible
privacy protections within HIT legislation and to ensure—should
`harmonization' of federal and state laws occur—that the strongest
possible state privacy protections are included, surpassing HIPAA's basic
requirement," said Nicholas Meyers, director of APA's Department of
Government Relations, in a May legislative update to APA members.
The impact of Jaffee also has been felt on the state level,
according to those who track it. Some credit the ruling with the increasing
stature state courts have given to the psychotherapist-patient privilege. In
the New York case People v. Robert Bierenbaum, a state appellate
court found that the psychotherapist-patient confidentiality was not waived by
the decision of the psychologists involved to warn the future victim that
their client may endanger her life (Psychiatric News, October 20,
Some state legislatures also have passed laws in recent years further
bolstering the relationship. One example is a recent New York state law that
disallowed lawyer-issued subpoenas of psychotherapy records in civil cases and
instead requires a judge to subpoena the records.
Although Jaffee's full impact remains uncertain, those who have
followed its brief history agree that its impact on future state and federal
court decisions and laws will undoubtedly expand beyond where it has reached
"We don't fully know yet—even 10 years down the road—what
Jaffee's legacy will be," Appelbaum said.
The Jaffee decision is posted at<http://apsa.org/pubinfo/jr-opin.htm#TOFN19>.
A Web site tracking developments related to the case can be accessed at<www.jaffee-redmond.org/>.▪