Are a Psychotherapist's Notes Confidential?

Sue Bagus was going through a difficult divorce and had been seeing a psychotherapist for some time. On May 6, 1996, she committed suicide.

Her husband was named the executor of her estate, which requested copies of the psychotherapist's records to see if a malpractice action was warranted. The doctor declined to do so on the basis of the physician-patient privilege, identifying certain documents as exempt from disclosure under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/2) because they were "personal notes." In re Estate of Bagus, 294 Ill.App.3d 887, 691 N.E.2d 401 (2d Dist. 1998).

Specifically, 740 ILCS 110/2 3(b) provides that the "personal notes of a therapist are the work product and the personal property of the therapist and shall not be subject to discovery in any judicial, administrative, or legislative proceeding or any proceeding preliminary thereto."

The issue became not the existence of the doctor-patient privilege, but, rather, what constituted personal notes and who makes this determination.

The psychotherapist argued that the privilege prohibited the production of an in camera inspection of a psychiatrist's personal notes. The estate conceded that personal notes are, indeed, privileged; but the court must be allowed to inspect the documents to review the psychiatrist's claim of privilege.

Justice S. Louis Rathje, without dissent, agreed with the estate and stated that "[e]valuating the relevance of discovery requests and ensuring parties' compliance are uniquely judicial functions." Id., 691 N.E.2d at 404. To do otherwise would unilaterally provide doctors with insulation from malpractice lawsuits, which was not the intent of the act.

The court held that any documents that the trial court finds to be "personal notes" shall not be disclosed to the estate or its attorneys. Id., 691 N.E.2d at 405. Although the right result was reached in Bagus, the court's opinion does not expand upon the statutory language as to what constitutes "personal notes."

A very different result was reached in another recent case. In Vann v. Lone Star Steakhouse Saloon, 967 F.Supp. 346 (C.D.Ill. 1997), the court found that, although a psychotherapist-patient privilege is recognized under federal common law, no "personal notes" exception exists.

In Vann, a psychotherapist treated plaintiff after she was constructively discharged from her job as a result of alleged intolerable sexual harassment. After plaintiff named the psychotherapist as an expert, she provided a one-page summary of her records but refused to disclose any medical records on the grounds that they were all "personal notes" within the meaning of the Illinois Mental Health and Developmental Disabilities Confidentiality Act.

The court, however, held that the case was governed by federal common law and not Illinois statute. The court found that the patient waived her right to confidentiality when she placed her mental condition into issue in litigation. 967 F.Supp. at 349. Therefore, all of the psychotherapist's notes would have to be revealed.

Several legitimate exceptions to the application of the privilege exist. But too often the exceptions become a net cast too wide, resulting in unjust and, sometimes, even strained interpretations of the privilege.

A compromising approach was that used by the Supreme Court of the United States, which recently recognized a psychotherapist-patient privilege. In Jaffe v. Redmond, 518 U.S. 1(1996), a police officer was involved in a fatal shooting and sought counseling later with a clinical social worker. The deceased man's family sued the officer and the police department and attempted to subpoena the confidential records of the officer's psychotherapeutic sessions with the social worker, who refused to do so except for some notes leading up to the shooting.

The 7th U.S. Circuit Court of Appeals disagreed and recognized a psychotherapist-patient privilege under Rule 501 of the Federal Rules of Evidence. The U.S. Supreme Court agreed, saying effective psychotherapy depends upon an atmosphere of confidence and trust in which a patient is willing to make a frank and complete disclosure of the facts, emotions, memories and fears. The public interest is served by individuals being allowed to freely seek and attain appropriate treatment in finding constructive solutions to their problems.

Although the court chose not to establish contours of the privilege, it extended it to licensed clinical social workers. All 50 states have some form of a psychotherapist-patient privilege statute, though they differ on the limits and scope of the type of information that can be revealed.

Generally, in recognizing privileges, Dean Wigmore set out four fundamental criteria: (1) the person must have made the communication in confidence; (2) confidentiality must be essential to the relationship; (3) society must wish to foster such relationships; and (4) the injury to the relationship that would result from the disclosure must be greater than the benefit to the fact-finder resulting from the disclosure. 8 J. Wigmore, Evidence @ 2285.

As Wigmore and the U.S. Supreme Court demonstrate, a balancing of interests test of sorts necessarily takes place in determining the evidentiary value of the information, such as a psychotherapist's personal notes, against the privacy interests of the individual.

Often the court will look to the Hippocratic oath, which states, "And whatsoever I shall see or hear in the course of my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets."

Courts apparently have a deeper appreciation for this trust, as well as the purpose of the privilege, which are furthered through secrecy. Perhaps the courts, then, can put to rest Benjamin Franklin's tongue-in-cheek adage: "Three may keep a secret, if two of them are dead."