Abstract

http://ssrn.com/abstract=1126822
 
 

Citations (1)



 
 

Footnotes (401)



 


 



An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts


Deirdre M. Smith


University of Maine School of Law

2008

DePaul Law Review, Vol. 58, p. 79, 2008

Abstract:     
Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory and thus undermines an important value served by the privilege; namely, enabling those who have sought mental health treatment to bring civil rights claims in federal court without concern that their treatment will become a focus of the litigation over their objections. Since federal courts are a primary forum for the vindication of civil rights, the disarray in the case law has significant impact and a chilling effect on those seeking relief under federal civil rights laws. I argue that federal courts should resolve disputes regarding waiver of the psychotherapist-patient privilege in a manner that is consistent with the general concept of waiver in the law and that provides all litigants meaningful protection from unnecessary intrusion into their mental health history. The article is the first to offer both an extensive analysis of the questions implicated by waiver of the psychotherapist-patient privilege, as well as a proposal for a reasoned and coherent approach that adheres to legal traditions regarding both the enforcement and waiver of rights generally, while preserving the federal courts as a place where all litigants, regardless of their mental health history, can fairly seek compensation for injuries.

Number of Pages in PDF File: 75

Keywords: evidence, mental health, psychotherapist-patient privilege, waiver

JEL Classification: K41

Accepted Paper Series





Download This Paper

Date posted: April 30, 2008 ; Last revised: February 15, 2009

Suggested Citation

Smith, Deirdre M., An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts (2008). DePaul Law Review, Vol. 58, p. 79, 2008. Available at SSRN: http://ssrn.com/abstract=1126822

Contact Information

Deirdre M. Smith (Contact Author)
University of Maine School of Law ( email )
246 Deering Avenue
Portland, ME 04102
United States
207-780-4370 (Phone)
207-780-4541 (Fax)
HOME PAGE: http://mainelaw.maine.edu/faculty/profiles/smith.html
Feedback to SSRN


Paper statistics
Abstract Views: 1,170
Downloads: 125
Download Rank: 138,261
Citations:  1
Footnotes:  401

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.390 seconds