Too Early to Judge Impact Of Precedent-Setting Ruling

Although legal scholars describe Jaffee's central psychotherapist-patient privilege as solid, if largely untested, the extent of that right remains undefined. The court anticipated the privilege would be defined by future cases when it noted in its decision that “it is neither necessary nor feasible to delineate its full contours in a way that would `govern all conceivable future questions in this area.' ”

One area of particular interest to psychiatrists is the applicability of the privilege to the prescription of psychoactive drugs, an increasingly large part of their practice. Courts have yet to answer clearly whether prescription writing falls under the psychotherapist-patient privilege. Melissa Nelson, a professor of law at the Hastings College of Law at the University of California, said that confidentiality is critical to realize the benefits of talk therapy, but, in her opinion, medications work regardless of confidentiality. Without a ruling, it is unclear whether medications are covered under Jaffee.

Psychiatry advocates point out that psychopharmacologic treatments are effective only if patients visit psychiatrists and talk to them about their problems.

Another area of contention is whether the psychotherapist-patient privilege includes a so-called dangerous-patient exception, which would remove protection of the patient's communications with a therapist from forced disclosure in open court if the therapist has issued a warning to a third party that the patient threatened him or her in therapy.

Federal appeals courts have issued contradictory rulings on the dangerous-patient exception but the Supreme Court has yet to consider the issue.

Although the Jaffee decision was precedent setting, the daily practice of psychiatry was left “completely unaffected” by the decision, Mosher said, because most psychiatrists never appear in federal court. However, the decision affected a variety of areas outside of the courtroom, including the attitudes of mental health clinicians in general toward communication with patients.

“It made mental health care providers aware of the importance of this privacy,” Mosher said. “Many psychiatrists didn't realize the importance of this privilege, and some still don't.”

One area quickly affected was federal health information privacy regulations. In the years immediately after Jaffee, federal officials added new privacy protections specifically for psychotherapy information as part of their implementation of the Health Insurance Portability and Accountability Act (HIPAA). The HIPAA regulations make it illegal for an insurer to condition the sale of a policy or payment of claim on a patient's agreement to allow disclosure of psychotherapy notes.

The HIPAA psychotherapy-specific privacy regulations, proposed in the 1990s and put into effect in 2003, were directly based on the Jaffee privilege, according to Peter Swire, a Clinton administration attorney and lead White House coordinator for HIPAA implementation.

“It was clear that special provisions were needed in the wake of Jaffee,” Swire told Psychiatric News.

Although numerous groups—including AIDS activists and abortion-rights supporters—clamored for special HIPAA privacy protections, the only category of sensitive information created by HIPAA covered psychotherapy notes, Swire said.

The HIPAA decision regarding psychotherapy notes is likely to expand further as the federal role in funding and providing mental health care increases, said Swire, a law professor at Ohio State University.

Another area in which Jaffee's impact is likely to be felt is in efforts to strengthen federal health information technology laws. The primary bill (HR 4157) under consideration could take away heightened mental health care protections now in the law, according to APA.

The high sensitivity of mental health records—as recognized in the HIPAA privacy rule and many state laws—requires additional protections for such records in addition to those for general medical records. APA officials are concerned that early versions of the bill would weaken some state protections.

“Questions have been raised about whether HIPAA's privacy approach should be used for a new health information technology system,” said Paul Appelbaum, M.D., chair of the APA Council on Psychiatry and Law and a former APA president. “Jaffee has been recruited to argue that new rules must maintain a high level of protection for communications between therapists and their clients.”

Later versions of the bill better clarified that patient privacy must remain a critical component of patient care within a health information technology (HIT) infrastructure.

“APA has sought and will continue to seek the strongest possible privacy protections within HIT legislation and to ensure—should `harmonization' of federal and state laws occur—that the strongest possible state privacy protections are included, surpassing HIPAA's basic requirement,” said Nicholas Meyers, director of APA's Department of Government Relations, in a May legislative update to APA members.

The impact of Jaffee also has been felt on the state level, according to those who track it. Some credit the ruling with the increasing stature state courts have given to the psychotherapist-patient privilege. In the New York case People v. Robert Bierenbaum, a state appellate court found that the psychotherapist-patient confidentiality was not waived by the decision of the psychologists involved to warn the future victim that their client may endanger her life (Psychiatric News, October 20, 2000).

Some state legislatures also have passed laws in recent years further bolstering the relationship. One example is a recent New York state law that disallowed lawyer-issued subpoenas of psychotherapy records in civil cases and instead requires a judge to subpoena the records.

Although Jaffee's full impact remains uncertain, those who have followed its brief history agree that its impact on future state and federal court decisions and laws will undoubtedly expand beyond where it has reached so far.

“We don't fully know yet—even 10 years down the road—what Jaffee's legacy will be,” Appelbaum said.

The Jaffee decision is posted at<http://apsa.org/pubinfo/jr-opin.htm#TOFN19>. A Web site tracking developments related to the case can be accessed at<www.jaffee-redmond.org/>.▪