Allred v. State

¶1(concurring)'.

¶2I concur with Justice Connor in his recognition or creation of a psychotherapist-patient privilege as a matter of decisional common law. But I do not concur with his conclusion that this privilege does not cover the communication made by Allred to Mrs. Henderson. For the reasons stated by Justice Rabinowitz in his separate opinion, I would hold that the privilege extends to the relationship between Mrs. Henderson and Allred.

¶3In determining that there is such a common law privilege, Justice Connor relies upon the four canons proposed by Professor Wigmore. I do not agree that the third canon must be satisfied, i.e., that “The relation must be one which in the opinion of the community ought to sedulously fostered”. There may be a day when community opinion does not sedulously foster the relation between psychotherapist and patient. If that day should come to pass, my position is that the privilege should still be recognized.

¶4Professor Wigmore apparently developed his canons to explain privileges then accepted. I feel that the inclusion of a criterion involving community approval is unfortunate if used for any purpose other than in an analysis of how some established privileges arose. I believe that if an antireligious sentiment should sweep the community, the court should still recognize the priest-penitent privilege; and if a substantial majority of the population, because of particular religious tenets, does not believe in medical science, the physician-patient privilege should still apply.

¶5The need for a privilege should not depend upon community approval of the relationship. Rather, it is the purpose of the relationship and its legitimate value to the participants which should be weighed against the truth-finding function of the courts. Some persons feel that religion is of no value to society. If this belief became prevalent, then under the Wigmore canons, the priest-penitent privilege would *429disappear. As to that privilege, one of the major considerations is the emphasis and firm belief of the participants in the value of the relationship. Legal doctrine will not affect the practice of that relationship, nor would legal sanctions be effective in breaching the already existing confidentiality. Thus, the truth-finding function of the courts would not be advanced by nonrecognition of the privilege.

¶6Another consideration is the effectiveness of the relationship in terms of the legitimate and valuable goals of that relationship. The purpose of the physcian-pa-tient relationship is to promote the physical well-being of the patient. The effectiveness of modern medical science would not ■be affected at all by the belief of the community in the value of that relationship. Therefore, if community approval for the relationship vanishes, the legitimate interests of the parties to the relationship should still be recognized. ,

¶7The psychotherapist-patient privilege is somewhat analogous to both the priest-penitent privilege and the physician-patient privilege. Like the priest-penitent privilege, the relationship between psychotherapist and patient often involves a central part of a person’s life. The trust and confidence placed in the psychotherapist is often as deep, if not deeper, than that placed in a priest. Like a physician-patient relationship, the main purpose of the relationship between the psychotherapist and the patient is the well-being of the patient— emotional, mental and frequently physical.

¶8Furthermore, often the purpose of the psychotherapist-patient relationship is the prevention and curing of antisocial behavior, such as the thereapy in the instant case. If this type of activity is successful, then many potential crimes will not be committed. The prevention of a number of similar defendants being prosecuted in future cases is more than an adequate balance for the hampering of the truth-finding function in an individual case.

¶9Psychotherapy is a relatively new endeavor, and as with all growing sciences, may not be adequately understood by the community. But it is its effectiveness, i.e., its central value to the participant and legitimate purposes which are to be considered, and not the community’s conscious approval. Community approval, although perhaps some evidence of value, is only a secondary indication of what I feel to be the primary considerations.

¶10• I believe that regardless of community opinion, a psychiatrist’s efforts to help an emotionally or mentally disturbed person would be fruitless if the patient did not place his entire trust in the psychiatrist and did not have complete confidence that their communications would never be revealed to others.

¶11Psychotherapy could never be successful without such trust and confidence.

¶12Justice Connor recognizes this by stating that without the patient’s confidence, a psychiatrist’s efforts are worthless, and that “in therapy a patient must often bare his entire inner life, including his fantasies, his past behavior, and his feelings of guilt or shame”. He cites the case of Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398, 401 (1955), where Judge Edgerton, in quoting from Guttmacher and Weihofen, Psychiatry and the Law, stated:

The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. … It would be too much to expect them to do so if they knew that all they say — and all that the psychiatrist learns from what they say —may be revealed to the whole world from a witness stand.

¶13Professor Wigmore was an eminent authority on the law of evidence. But his “authority” does not require this court to unalterably adhere to every rule that he *430proposes. I would dispense- with Wig-more’s third condition or canon for recognizing the psychotherapist-patient privilege.

¶14Finally, I respectfully suggest that Justice Connor’s opinion should not have stated the additional rule of law that the psychotherapist-patient privilege is one “belonging to the patient”. This clearly implies that the psychiatrist cannot claim the privilege if the patient waives or abandons. it.1

¶15I realize that where the physician-patient privilege is concerned, for example, this is a rule that is generally, if not universally, applied by the courts. And in the few instances where the question has arisen involving the psychotherapist-patient privilege, the same rule has likewise been applied.2

¶16But I question its validity in the latter instance. A seriously disturbed patient may very well not realize the consequences of his waiver of the privilege.

¶17Where there has been intense psychotherapy over an extended period of time, it is more likely than not that to force the psychiatrist to breach the trust the patient has placed in him would destroy the psychiatrist-patient relationship, and could result in incalculable harm to the patient. I believe that circumstances may well exist where the psychiatrist should be permitted to assert the privilege — even in the face of an abandonment or waiver of the privilege by the patient — for the best welfare of the patient.

¶18I do not propose to elaborate on this subject further for the reason that whether the psychotherapist-patient privilege is one belonging solely to the patient and may not be asserted by the psychiatrist is a question not involved in this case. Justice Connor’s statement on this subject is dictum, i.e., a statement of a principle of law not essential to the determination of the ultimate issue in this case. I believe this question should not be decided here, but should await a case where it is directly involved, and where we have had the advantage of full adversary treatment of the issue, both in the trial court and in this court.