The Psychotherapist-Patient Privilege in the Family Court: An Exemplar of Disharmony Between Social Policy Goals, Professional Ethics, and the Current State of the Law
The mental health community recognizes the importance of confidentiality in the psycho-therapeutic relationship and the resultant impact on the effectiveness of treatment. This is embodied in professional ethical standards that prescribe confidentiality of information obtained in treatment. A psychotherapist-patient testimonial privilege is recognized by common law in federal courts, and by statute in all fifty states. However, state laws provide uncertain protection of this privilege in child custody disputes and virtually none in child abuse and neglect cases. In such cases, mental health professionals are commonly required to provide courts with confidential information obtained in psychotherapy sessions- often against their patients' interests. This abrogation of the psychotherapist-patient privilege is widely believed to be necessary for the protection of children. This article examines whether evidence in this manner is reliable, meaningful, or necessary to fulfill the courts' obligation to protect children. It demonstrates that abrogation of the psychotherapist-patient privilege significantly reduces the likelihood of successful therapy and only contributes a minor evidentiary benefit. It considers the U.S. Supreme Court's seminal decision in Jaffee v. Redmond, which recognized the privilege in federal courts. It also considers the results of an important series of empirical studies that support the need for confidentiality in the therapeutic relationship and a sample of Michigan Court of Appeals opinions that demonstrate the minimal value of evidence derived from therapists' compelled testimony. The article concludes that policy objectives, professional ethical requirements, and legal constraints are at odds with each other in cases involving the welfare of children. In such cases, the psychotherapist-patient privilege is abrogated by the courts, but with little or no resulting protection for children due to the minimal evidentiary benefit derived from the compelled disclosure. Finally, the author endorses an alternative to these current practices, which synchronizes the need to protect children with a procedure that guards the confidentiality of the therapeutic relationship
