Psychiatrists Can’t Be Forced To Testify Against Patients

A federal appeals court has upheld the concept that prosecutors cannot require psychiatrists to testify during a trial against a patient accused of committing or threatening a violent act. The court emphasized, however, that this does not diminish a psychiatrist’s obligation to warn third parties that a patient has made serious threats of violence against them.

Although alerting potential victims or law-enforcement personnel of a patient’s threats of violence—so-called Tarasoff warnings—does not violate psychiatrist-patient confidentiality statutes that every state has enacted, a psychiatrist’s testimony about the communicated threats during a legal proceeding that could result in a patient’s punishment does breach that protection, the court ruled.

The appeals court emphasized the distinction between the concepts of “confidentiality and testimonial privilege.” While the former refers to stringent protections that states and the federal government have granted to communications between therapist and patient, the latter concerns “the specific right of a patient to prevent the psychotherapist from testifying in court” about statements the patient made during therapy.

The court found “only a marginal connection, if any at all,” between a psychiatrist’s notification of a potential threat victim, which, it noted, serves “an immediate function,” and testifying in court after a patient has been arrested, which “focuses on establishing a past act.” The court rejected as “a fiction” the argument that “the patient knows that a disclosure for one purpose (warning a potential target of violence) is a disclosure for all purposes (including incriminating testimony. . .).”

Allowing a testimony exception to the confidentiality statutes when violent threats are at issue, the court ruled, “would significantly injure the interests” that justify the enactment of a psychotherapist-patient privilege in the first place.

“Psychiatrists should find reassurance in the court’s respect for the importance of confidentiality in the therapeutic relationship,” forensic psychiatrist and former APA president Paul Appelbaum, M.D., told Psychiatric News.

In an appeal of an Oregon case, United States v. Steven Gene Chase, the U.S. Court of Appeals for the Ninth Circuit, located in San Francisco, ruled that a criminal defendant was correct in asserting that a lower court should have upheld his right to block his psychiatrist from testifying about the content of their therapy sessions.

The court not only ruled that therapist-patient privilege statutes should have applied, but also said it was unwilling to “craft a ‘dangerous patient’ exception to the testimonial privilege.” The state law that protects therapist-patient confidentiality makes no exception, beyond a Tarasoff-like warning, when “the threats the defendant communicated arguably constituted a crime,” the ruling pointed out.

The appeals court also emphasized that since the trial was held in a federal district court, the federal psychotherapy protection the Supreme Court guaranteed through its 1996 Jaffee v. Redmond decision should have also led the lower court to disqualify the psychiatrist’s trial testimony about communications during therapy.

In 1997 the defendant, Steven Chase, began treatment with psychiatrist Kay Dieter, M.D., at a Kaiser Permanente clinic. Chase “was suffering from irritability, depression, and symptoms of anger,” the ruling notes, as well as “episodes of rage and obsessive rumination against certain people, including those who participated in various legal proceedings in which the defendant was involved.”

Chase received a diagnosis of type II bipolar disorder. In the ensuing months he met with the psychiatrist occasionally for therapy and medication management and met more often with psychologist Robert Schiff for psychotherapy.

In August 1999 Chase indicated to Dieter that he had considered injuring or killing two FBI agents who had investigated complaints that Chase had filed against other individuals, and that he had in fact issued threats to the intended victims. Though Chase said he would not follow through on the threats, the psychiatrist warned him of her duty to alert potential victims so they could take protective measures.

After other sessions that raised further alarms, Dieter consulted with a Kaiser Permanente attorney to discuss the continuing threats Chase was conveying during therapy. The attorney advised her to contact the local Corvallis, Ore., police about the threats to the FBI agents, which she did. When FBI agents contacted her six days later, Dieter informed them of the details of threats Chase made. Her clinic supervisors advised her to continue cooperating with law-enforcement personnel and to “elicit more information about defendant’s plans,” the ruling noted, and Chase soon made additional threats that he would kill people on a list he had prepared.

FBI agents eventually went to Chase’s house to arrest him. After negotiations, Chase agreed to leave his gun on a table and surrender. He was charged with threatening to kill law-enforcement officers who wanted to execute a search warrant on his home, threatening to murder FBI agents who had enraged him by not investigating complaints he had filed, and possessing a firearm by “a person adjudicated by the Social Security Administration to be mentally defective.”

Once his trial began and he learned Dieter was to testify for the prosecution, Chase challenged the legality of such testimony as an illegal breach of confidentiality protections. The trial court ruled against him, holding that the psychiatrist’s testimony could be admitted.

The lower court’s reasoning was that “the federal psychotherapist-patient privilege did not apply because Dr. Dieter properly had determined that defendant’s threats were serious when uttered, that harm was imminent, and that disclosure to authorities was the only means of averting the threatened harm.”

The jury convicted Chase of threatening agents who were about to serve a search warrant, but acquitted him on the charges that arose from the violence threats he conveyed to his psychiatrist during therapy. He appealed the conviction on grounds that the court should not have allowed Dieter to testify about privileged information.

The appeals court’s ruling states that Dieter was correct in alerting law-enforcement personnel once she determined that her patient was likely to act on the violent threats he described during therapy. It found that only one state—California—allows a “dangerous-patient exception” to the laws of evidence that protect patients from having their psychotherapist testify in court about privileged communications. In California—the birthplace of the 1976 Tarasoff ruling, “a psychotherapist not only must disclose to authorities or intended victims the existence of a dangerous patient, but also may testify to threats made in the course of therapy,” the appeals court noted.

“The decision balances two important considerations—protection of the public and respecting the confidentiality of treatment—in an appropriate way,” Appelbaum explained. Psychiatrists know they are “expected to take protective action when their patients represent a significant threat to others. That may involve a breach of confidentiality. . . .In my view that’s the right trade-off in this situation. Once protective action has occurred, though, a different set of interests may be in balance—prosecution of the patient versus protecting therapeutic confidentiality.”

He said that the appeals court appropriately ruled that “the usual rules governing the psychotherapist-patient privilege should apply” when it comes to the testimony phase of a patient’s criminal trial.

Appelbaum is chair of the psychiatry department at the University of Massachusetts Medical School and director of its Law and Psychiatry Program.

Prosecutors have not yet indicated whether they plan to appeal the recent ruling to the U.S. Supreme Court.

[United States v. Chase, No. 01-30200 (9th Cir.08/22/2003)]. ▪