The Psychotherapist Privilege: Privacy and 'Garden Variety' Emotional Distress
41 Pages Posted: 27 Apr 2013 Last revised: 6 Mar 2014
Date Written: April 1, 2013
This article is the first in-depth look at an increasingly popular approach to the psychotherapist-patient privilege, an approach that has a major impact on federal civil rights litigation. The privilege protects the confidentiality of a therapist’s sessions, but federal courts will sometimes find an implied waiver of the privilege when a plaintiff seeks emotional distress damages. The courts vary in how they approach this issue, but more and more courts are using an approach under which the privilege is maintained if the plaintiff alleges no more than “garden variety” emotional distress. The issue arises primarily in civil rights litigation, such as employment discrimination claims.
The implied waiver issue arises frequently in federal district courts, yet litigants have no certainty about how the court will approach the question. Even the emerging consensus around the “garden variety” approach provides no certainty, since the definition of garden variety is also unclear. The article discusses the history of the privilege and the exception, and concludes that the “garden variety” approach is biased and unpredictable, undermining the very goals of civil rights and mental health legislation. The article provides an alternative analysis, following the Court’s template under Rule 501. The article surveys the implied waiver laws of the fifty states, and proposes a legislative alternative that captures the benefits of the “garden variety” compromise, but returns the choice of waiver to the patient-litigant.
Keywords: psychotherapist, privilege, emotional distress damages, garden variety mental distress, torts, evidence, civil rights
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