Privacy and the Psychiatrist

When he received a subpoena last year that summoned him to give a deposition in San Francisco, Psychiatrist Joseph Lifschutz did not hesitate to comply. But when he was asked to testify about his treatment of Joseph Housek, a former patient, Lifschutz demurred. The law, he declared, should not force him to betray even the existence of a patient-therapist relationship, much less what it involved. As a result, Lifschutz was ultimately found in contempt of court and sentenced to jail until he agreed to answer.

Housek is a high school teacher who had brought a $175,000 damage suit against a student who allegedly assaulted him. He claimed that the crack on the jaw caused him "severe mental and emotional distress." In California, as in many states, whenever a person makes such a claim he automatically waives his right to privacy in any relevant relations with a doctor. Each year, many psychiatrists respond to subpoenas or requests from their patients and reveal all kinds of secrets.

Lifschutz protested, relying on a battery of arguments, including a claim that the Constitution gives psychotherapists an absolute right not to disclose, regardless of their patients' wishes. Moreover, Lifschutz argued, the patient cannot make an informed waiver of his rights--he may not know what his doctors will say about him. Worse still, said Lifschutz, a psychiatrist's testimony might well torment his patient and destroy the treatment process.

Delimited Distress. None of this impressed the judge. As a result, the determinedly silent psychiatrist was taken to the San Mateo County Jail, where he spent three days in a cell before the California Supreme Court let him out, pending its review of his case.

Last week the high court upheld the decision to hold the psychiatrist in contempt. In essence, the decision reaffirmed the state's waiver law. When a plaintiff makes his own mental condition an issue in a lawsuit, the court ruled, the need for accurate trial evidence overrides a psychiatrist's right to protect the confidentiality of what he knows. Even so, the court recognized a patient's right to avoid public embarrassment. It emphasized that judges should limit the scope of the inquiry in the light of "the nature of the injuries which the patient-litigant himself has brought before the court." In such cases, it suggested, patients should attempt to "delimit" the nature of their mental distress in advance, so that courts can bar questions that delve unnecessarily into "specific intimate factual circumstances." On that basis, Lifschutz decided to talk.

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