Jaffee v. Redmond And Its Implication for Counselor-Therapist Confidentiality - Part 2

1 - Jaffee v. Redmond And Its Implication for Counselor-Therapist Confidentiality introduction. Analyze the Jaffee v. Redmond (1996) case and the implications this case has had for communication between counselor and client. On June 27, 1991, Mary Lu Redmond, a police officer, responded to a fight at an apartment complex. Believing that Ricky Allen was about to stab a man he was chasing, she shot and killed him. The administrator of Mr. Allen’s estate, Carrie Jaffee, filed suit in Federal District Court alleging that Officer Redmond violated Mr. Allen’s constitutional rights by using excessive force.

During the discovery phase of the case, Ms - jaffee v. redmond. Jaffee learned that Officer Redmond had participated in 50 counseling sessions with a clinical social worker, Karen Beyer (“Ms. Beyer”). She sought access to the notes taken by Ms. Beyer during those sessions. Officer Redmond’s attorney resisted the request, arguing that disclosure should be prevented because of a psychotherapist-client privilege. The court allowed the request but neither Ms. Beyer nor Officer Redmond complied with it. The judge advised the jury that the refusal to turn over Ms.

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Beyer’s notes could be considered a presumption that the content of the notes would have been unfavorable to Officer Redmond. The jury awarded Allen’s estate $45,000 on the federal civil rights claim and $500,000 on her state-law claim. The Court of Appeals for the Seventh Circuit reversed the award and ordered a new trial, concluding that a psychotherapist-client privilege should be recognized. Ms. Jaffee, on behalf of Mr. Allen’s estate, appealed to the US Supreme Court.

The questions before the Court were: 1. hether it is appropriate for federal courts to recognize a psychotherapist privilege under the federal rules of evidence; specifically, F. R. E. Rule 501; 2. if the federal courts recognize a psychotherapist privilege, should the privilege extend to confidential communications made to licensed social workers; and 3. should the conversation during a treatment session plus any therapist’s notes be protected from disclosure? The Court ruled that the federal courts should recognize a psychotherapist-client privilege.

Additionally, the privilege should extend to any confidential communications made by licensed social workers in the course of psychotherapy. Finally, what is said during a psychotherapeutic session, plus any notes taken by the therapist, are protected from disclosure under the federal rules of evidence. The Jaffee decision has significance because it pretty well cemented the psychotherapist-client privilege within the federal legal system. The Court held that confidentiality between a psychotherapist and the client was “absolute”.

That implies that there is greater societal value in preserving the integrity of the therapist-client relationship than finding out the complete truth of the matter in a court case. Outside the courtroom, the therapeutic relationship is also affected. A client is likely to be more candid about his or her feelings or discussing particular facts if s/he knows whatever is said during the session cannot be used as ammunition in a legal or administrative proceeding. That said, the use of the word “absolute” does not mean never under any condition.

The vast majority of legal privileges do have some limits and exceptions, including that held in a psychotherapist-client relationship. For example, in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 [1976], the California Supreme Court held that holding that if a therapist determines or reasonably should have determined “that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. ” At first glance, it would appear that the Jaffee decision negated Tarasoff and its progeny.

However, there is a footnote in the decision indicating no itention to invalidate the duty to protect that was articulated in Tarasoff. But there was also no reasoning or discussion on the part of the Jaffee court – simply a footnote: “[W]e do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist. ” Unfortunately, there is a relative paucity of guidance from courts for therapists when it comes to the interplay between Jaffee and Tarasoff.

In one decision, United States v. Glass, 133 F. 3d 1356 (10th Cir. 1998), the 10th Circuit held that the alleged “exception” to the Jaffee privilege, described in footnote 19 of the Jaffee decision, is applicable only where the threat was serious when made and disclosure was literally the only means of averting harm. In another, US v. Hayes, 227 F. 3d 578,(C. A. 6 Tenn. 2000), the court went further, saying: “First, recognition of a “dangerous patient” exception surely would have a deleterious effect on the ‘atmosphere of confidence and trust’ in the psychotherapist/patient relationship.

While early advice to the patient that, in the event of the disclosure of a serious threat of harm to an identifiable victim, the therapist will have a duty to protect the intended victim, may have a marginal effect on a patient’s candor in therapy sessions, an additional warning that the patient’s statements may be used against him in a subsequent criminal prosecution would certainly chill and very likely terminate open dialogue. ”

A recent Oregon case seems to find the line of best fit between the obligation of therapists under the ethical rules (and the Jaffee decision) to keep a client’s communications confidential and the duty to protect an innocent third party from harm as articulated in Tarasoff. In essence, in U. S. v. Chase, 340 F. 3d 978 (C. A. 9 Or. 2003) the court stated that the Tarasoff decision applies to psychotherapist-client confidentiality laws; whereas, Jaffee applies to the disclosure of evidence only within the context of a court case.

Thus, under Tarasoff, a therapist could have an obligation to protect a third party but still legally refuse to have his/her confidential communications (including notes) disclosed in a court proceeding as stated in Jaffee. In sum, a therapist must be cognizant of the difference between compliance with laws regarding confidentiality within a therapeutic context and the disclosure of information with respect to a judicial proceeding. On the one hand there may be a clear duty to break the seal of the therapeutic alliance for the protection of another while on the other there is also a shield against legal jeopardy for the client.

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