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From the Street Survival Newsline Archive
Originally published 6/14/96 Your right to have your conversations with a therapist after a critical incident kept confidential was affirmed yesterday (6/13) by the U.S. Supreme Court. This is the first time the Court has recognized a “psychotherapist privilege.” The decision grew out of a lawsuit filed against an officer and her suburban village after she shot and killed 31-year-old Ricky Allen, who she claimed was threatening another man with a butcher knife during a disturbance outside an apartment building in 1991. Allen’s outraged family insisted that he was unarmed. As we reported earlier on the Street Survival Newsline, the involved officer, Mary Lu Redmond of the Hoffman Estates (IL) Police Dept., sought counseling with a licensed clinical social worker employed by the village after the shooting. During trial in 1993 of the federal civil suit brought by Allen’s survivors, plaintiffs’ attorneys tried to get the social worker to disclose notes from about 50 of their sessions. The social worker and Redmond argued that such conversations are confidential under a “therapist’s privilege.” This privilege is recognized in some form, at least for psychiatrists and psychologists, by legislation and case law in all 50 states and the District of Columbia. However, such a privilege has not prevailed uniformly in the federal system, and the judge ordered the notes produced. When Redmond and the therapist stood fast against divulging the substance of their conversations, the judge told the jury that this was legally unjustified. He said jurors could presume that the information sought was, in fact, unfavorable to RedmondÑdespite the fact that she had been exonerated of any wrongdoing by investigations conducted by her department and the county state’s attorney’s office. After the judge’s instruction, the jury voted that Redmond had used excessive force against Allen and awarded his family $545,000 ($45,000 for a civil rights violation and $500,000 for wrongful death), plus legal fees that could have pushed the total over $1,000,000. The U.S. Court of Appeals for the 7th Circuit reversed this award, ruling that the judge was wrong in telling the jury that it could make an unfavorable assumption about the counseling sessions. However, the Appeals Court did not offer a blanket endorsement of the therapist privilege. It said, instead, that an individual’s privacy must be weighed against “the interests of justice,” leaving the door open for secrets from counseling sessions having to be revealed in some cases. In yesterday’s 7-2 decision, the Supreme Court upheld the Appeals Court’s reversal of the Redmond case. In addition to the extreme comfort and benefit of officers who seek professional help in coping with the emotional after-burn of controversial critical incidents the high Court ruled that therapist confidentiality does NOT have to be balanced against “the interests of justice” and that it extends to licensed social workers as well as psychiatrists and psychologists. (The case, incidentally, is CARRIE JAFFEE, SPECIAL ADMINISTRATOR FOR RICKY ALLEN SR., DECEASED, PETITIONER V. MARY LU REDMOND ET AL., No. 95-266.) “Effective psychotherapy,” says the Supreme Court opinion, written by Justice John Paul Stevens, “depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears.” Because disclosure of intimate therapeutic conversations “may cause embarrassment,” the mere possibility that they would become public despite the patient’s objections may “impede development of the confidential relationship necessary for successful treatment.” Such conversations deserve the same privilege of confidence as accorded communications between spouses and between lawyers and their clients, the Court said, and are protected under Rule 501 of the Federal Rules of Evidence. “If the privileges were rejected, conversations between psychotherapists and their patients surely would be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation.” In a dissent, Justice Antonin Scalia argued that a broad psychotherapist privilege would result in “occasional injustice” for plaintiffs, that the state legislation on the subject is not as strong in all jurisdictions as it appears and that social workers are not deserving of the same protective privilege as psychiatrists and psychologists. Redmond, who has left law enforcement, was “very happy” that the Court majority “agreed with protecting her privacy,” according to her lawyer, who also represented the village. The decision, he said, “keeps matters which we have contended all along were extraneous from coming into the jury’s consideration” when use-of-force controversies are being evaluated. The Hoffman Estates mayor called the decision “an important victory for all police officers,” and William Johnson, general counsel for the National Assn. of Police Organizations, said the ruling “recognizes the tremendous psychic trauma of what police officers have to witness and deal with on a daily basis.” For ex-officer Redmond, however, the case is not yet over. An attorney for the offender’s family says he will try next week to schedule a re-trial of the case. Despite yesterday’s ruling regarding the counseling sessions, he predicts that the family will still win again the next time around on the other evidence “an even bigger verdict this time.”
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