Protecting the Confidentiality of the Therapeutic Relationship: Jaffee v. Redmond.

Lens, Vicki

Virtually since its inception, the profession of social work has been regarded by many to be a "semi"-profession, hovering somewhere between the established professions of law, medicine, and psychology and less skilled occupations such as craftsmen and clerical workers (Greenwood, 1957). With its roots in the friendly visitors and settlement workers of the late 19th century (Day, 1997), social work at times seemed more like a calling than a skill, a way to "do good" rather than a professional occupation. This view has lessened over the years as social work has acquired the essential attributes of a profession, including a solid theoretical base and an ethical code (Greenwood). But even today some uncertainties still linger, with the community's sanction of the profession-an essential attribute according to Greenwood--sometimes lacking. However, doubts about the authenticity of social work as a profession and its acceptance as such by the larger community were dispelled by no less an institution than the Supre me Court, in its 1996 decision in Jaffee v. Redmond.

At issue in Jaffee was whether conversations between a social worker and her client are privileged communications and thus protected from forced disclosure in a civil action in federal court. The petitioner, Carrie Jaffee, was the administrator of the estate of Picky Allen, who had been killed by the respondent, Mary Redmond, a police officer. Jaffee filed suit in federal court alleging that the respondent had violated Allen's constitutional rights by using excessive force when responding to a police call at an apartment complex. After discovering that Redmond sought help from a licensed clinical social worker after the shooting, Jaffee sought access to the notes concerning 50 counseling sessions. Redmond resisted disclosure, even after the trial court ordered that the notes be turned over, claiming that the conversations were privileged because they occurred between a psychotherapist and her patient.

Jaffee was a case of first impression for the Supreme Court, which had never before addressed the issue of whether a psychotherapist privilege existed for social workers or any of the other therapeutic disciplines, including psychiatry and psychology. The Court granted certiorari because of the importance of the issue and because the lower appeals courts could not agree on whether such a privilege existed.

The Jaffee Court conducted a two-step analysis. First the Court determined whether a psychotherapist privilege should exist. Then, it decided whether the privilege should include social workers. (That this required a separate analysis is revealing. It meant that to the Court, social workers, unlike psychiatrists and psychologists, were not--at first glance--necessarily synonymous with the term psychotherapist.)

The most significant hurdle the Court faced in creating a new privilege was the 300-year-old axiom "that the public [ldots] has a right to every man's evidence". (Jaffee v. Redmond, p. 1928). The principle and values underlying this rule go to the very heart of our justice system--the search for truth. Simply put, excluding facts can result in erroneous and misguided judgments. It can prevent the truth from coming out or make it difficult to determine what the truth is. For example, in Jaffee there were conflicting eyewitness accounts over the "gravamen" of the complaint, whether Redmond had used excessive force. Any statements made by Redmond to her therapist that she had used excessive force would have resolved this conflicting testimony.

The majority opinion (joined by seven of the Justices) quickly dispensed with the notion that "every man's evidence" meant every piece of evidence. It recognized that the search for truth must, at times, yield to the public good. To determine when it should yield, the Court applied a balancing test, weighing the value of aggressive fact finding with the value of the psychotherapist privilege.

To establish the usefulness of the psychotherapist privilege, the Court first delved into the reasons behind the need for confidentiality in the psychotherapeutic relationship. Echoing long-held therapeutic precepts, the Court emphasized that "good" therapy meant "private" therapy. Only if confidentiality was assured would clients feel free to disclose their innermost thoughts. And only if their innermost thoughts were disclosed would therapy be successful.

However, because any privilege must also "serve public ends" (Jaffee v. Redmond, p. 1929) the Court also found it necessary to stress the public, along with the personal, benefits of psychotherapy. It did this succinctly and concisely, stating that "the mental health of our citizenry, no less than its physical health, is a public good of transcendent importance" (Jaffee v. Redmond, p. 1929 ). The fact that all 50 states recognized some form of psychotherapist privilege also underscored for the Court that the privilege was a public, as well as a private, matter. In sum, the widespread acceptance of the privilege by every state, coupled with its usefulness in protecting the mental health of citizens, gave the privilege a gravity and importance that outweighed the evidentiary needs of a court.

The Court next turned to the question of whether the privilege should be extended to social workers. After noting that "all agree" that psychiatrists and psychologists come under the privilege, the Court stated that "the reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker" (Jaffee v. Redmond, p. 1931). Relying on information provided in a brief submitted by the National Association of Social Workers, it observed that social workers provide a large portion of mental health services. Recognizing the value of therapy to all, regardless of income, the Court went on to note that social workers often treated the poor, who do not have access to typically higher-priced psychiatrists and psychologists.

Two justices--Chief Justice Rhenquist and Justice Scalia--dissented, with Scalia writing the dissenting opinion. Scalia at first cloaked his dissent in the language of justice, claiming that the privilege would prevent courts from admitting crucial evidence, thus "caus(ing) the courts of law not merely to let stand a wrong, but to become themselves the instruments of wrong" (Jaffee v. Redmond, p. 1933). However Scalia quickly ceded the high ground by devoting much of the rest of his dissent to displaying his disdain for therapy and his even greater disdain for social workers.

To Scalia, therapy was simply not useful or important enough to be protected by the privilege. As the following excerpt from the opinion indicates, Scalia appeared surprisingly ignorant of just what therapy entailed:

When is it, one must wonder, that the psychotherapist came to play such an indispensable role in the maintenance of the citizenry's mental health? For most of history, men and women have worked out their difficulties by talking to, inter alios, parents, siblings, best friends and bartenders. [ldots] Ask the average citizen: Would your mental health be more significantly impaired by preventing you from seeing a psychotherapist, or by preventing you from getting advice from your mom? (Jaffee v. Redmond, p. 1934)

Scalia also appeared to have little understanding of the skills and training of social workers. He dismissed social workers' training as not "comparable in its rigor" (Jaffee v. Redmond, p. 1938) to that of others who have been afforded a privilege, including lawyers, psychiatrists, and psychologists. He questioned whether a social work degree included any training in psychotherapy. He also pointed out that many social workers were not clinical social workers, making it inappropriate to view them in the same way as psychiatrists or psychologists, whose role is typically a clinical one.

Scalia also dismissed the fact that all 50 states have enacted a psychotherapist privilege, with the vast majority including social workers. Contrary to Scalia's usual deference (at least philosophically) to the people's will as expressed through legislation, Scalia expressed concern that this might be because of the political pressure exerted on the legislature by social workers and psychologists.

In sum, Scalia's dissent made it clear that he does not value social workers, or psychotherapy, and that this, rather than a concern for justice, drove his opposition to a psychotherapy privilege. Ignoring the accumulated knowledge of the value of psychotherapy, Scalia instead chose to base his decision on an ideology that hearkens back to the U.S. ethos of "rugged individualism" and the new conservative screed of "family values." Simply put, social workers and other "outsiders" who try to "tinker" with the world are not to be viewed as a source of help for the troubled.

Notwithstanding Scalia's dissent, Jaffee represents a major victory for psychotherapists in general and social workers in particular. The victory is both symbolic and practical. On a practical level, the decision now extends the psychotherapy privilege, already a feature of state legislation, to civil actions in federal court. (The use of the privilege in criminal cases was not addressed by the Court and involves different evidentiary and constitutional concerns.) By following the lead of all 50 states, the Supreme Court did not so much create new policy as institutionalize on the federal level an already accepted policy in state courts. And as the Jaffee Court noted, keeping the psychotherapy relationship private will encourage more individuals to seek help.

However, the decision's greatest effect may very well be in its symbolic value. As a result of Jaffee, the confidentiality of a social worker's therapeutic relationship with a client stands on the same ground as the confidentiality between a lawyer and her client and a husband and wife (both of which are considered privileged communications). Because our justice system values the search for truth (or at least professes to), only very few relationships have been draped in the virtually impenetrable cloak of privilege. The fact that psychotherapy has been included in this select group by no less an institution than the Supreme Court demonstrates how much therapy--and mental health--has come to be valued in our society.

Indeed, it was only a relatively short time ago--in the beginning of this century--that the mentally ill were scorned, denigrated, and barely helped (Trattner, 1994). One only has to compare this view from the past with the Jaffee Court's pronouncement, as quoted earlier, that the "mental health of our citizenry [ldots] no less than its physical health, is a public good of transcendent importance"(p. 1929) to see that tremendous strides have been made in society's view of mental illness and its respect for the tools professionals use, including therapy, to treat it.

For social workers, the victory is significant because of the central role that social workers played in the case. It proved fortunate for social workers that the first case to reach the Court involving a psychotherapist--patient privilege involved a social worker. It placed the social work profession center stage, requiring the Court to decide whether social work was a profession that commanded as much respect as lawyers and psychiatrists. It is a question that the social work profession has grappled with since its beginnings, when in 1915 Flexner gave his now famous report suggesting that social work was in fact not a profession (Flexner, 1915). The Court's answer--that social work is clearly a profession--is, in many ways, a barometer of how far social work has traveled since its beginnings.

However, it is significant that the profession of social work was noted not for its traditional mission of helping the poor, but for the contribution it is making to the practice of psychotherapy. Commentators such as Specht and Courtney (1994) have criticized the profession for abandoning its focus on social change and social justice and for spending too much time treating individuals, primarily from the middle class, for intrapsychic problems. To some then, Jaffee may be seen as less a symbol of social work's acceptance as a profession than of how far it has strayed from its original mission.

Nevertheless, the Court did not wholly neglect the fact that social workers, more than any of the helping professions, are aligned with the poor and the underserved. For the Court also sent another message in its decision--that it is not only social workers' skills that are valued, but their clients as well. This message can be found in the Court's discussion of the crucial role social work plays in providing therapy services to groups, such as poor people, that other professions tend to ignore. The Court recognized that if social workers were not covered by the privilege, then neither would poor people who seek help. Such a result offended the Court's notion of the public good. By emphasizing that it was important for all members of a society to have access to mental health services the Court was espousing the value of equality. Although it may be argued that the Court's ability to elevate the status of poor people in our society or to equalize the distribution of mental health services is questionable, it is nonetheless significant that such a powerful institution recognized, and attempted to address, such inequality.

In sum, the Jaffee Court's establishment of a psychotherapy privilege acknowledges the importance of confidentiality in the psychotherapeutic relationship for all who seek help--rich or poor. Left unanswered by the Court were the precise contours of this new privilege. As is typically the case when the Court creates a new right, the parameters of the right will be determined case by case over time. Whether the privilege applies when a social worker is engaged in something less than full-blown psychotherapy with a client or under what situations a client is considered to have waived the privilege are questions that will be answered in the future. But what is certain, is that the Court clearly has recognized the value of social work and the value of the psychotherapeutic relationship.

Vicki Lens, MSW, JD, is a clinical instructor, Wurzweiler School of Social Work, Yeshiva University, 500 West 185th Street, New York, NY 10033-3201, and adjunct professor, Jacob D. Fuchsberg Law Center, Touro College, Huntington, NY; e-mail: VickiLens@aol.com.

References

Day, P. (1997). A new history of social welfare (2nd ed.) Boston: Allyn & Bacon.

Flexner, A. (1915). Is social work a profession? In Proceedings of the National Conference of Charities and Correction (pp. 576--590). Chicago: Hildman.

Greenwood, E. (1957). Attributes of a profession. Social Work, 11(3), 45-55.

Jaffee v. Redmond, 116 S.Ct. 1923 (1996).

Specht, H., & Courtney, M. (1994). Unfaithful angels. New York: Free Press.

Trattner, W. (1994). From poor law to welfare state. New York: Free Press.