PUBLIC INTEREST AND PSYCHOTHERAPIST-PATIENT PRIVILEGE: AN ANALYSIS OF COURT BEHAVIOR (CONFIDENTIALITY, INDIVIDUAL INTEREST, SOCIAL CONTROL, MALPRACTICE)

This is a study of interrelationships between the courts and the mental health profession. Five appellate court opinions dealing with the legal and ethical problems of testimonial privilege in the psychotherapist-patient relationship are content-analyzed. These are Lifschutz (1970), Tarasoff (1974), Tarasoff (1976), Caesar v. Mountanos (1976), and Shaw v. Glickman (1980). Public fear of mental patient violence and of disclosure of confidential records affects the selected indicators of legal liability and social conflict, namely, testimonial privilege, confidentiality, predictability, duty to warn, professional image, and individual versus public interest. Value-antagonism between judges, therapists, and victims occurs over two issues: therapist-client privilege and therapist duty to warn. The former issue addresses the question of whether public or private interests are served by absolute privilege. Courts regard absolute privilege as a vested interest of therapists, who claim that it serves the public interest. The duty to warn is another area of dispute. The landmark case Tarasoff (1974 and 1976) established new duties to warn and protect third parties despite therapists' courtroom testimony of the inability of their science to accurately predict dangerousness. Judges, while consciously attempting to resolve disputes between public and psychiatric value systems, are found to base some of their decisions upon unconscious biases, resulting in inconsistent judicial rulings in similar cases. It is concluded that value-antagonism between courts and psychiatrists over confidentiality is inevitable and will remain a challenging problem in the future.