Ex Parte Abell

¶1dissenting.

¶2While I fully agree with the retrospective application of article 5561h, I respectfully dissent from the conclusion the court has reached that the sexual contacts inquired about are privileged under the terms of that statute.

¶3Section 2(a) declares “communication between a patient/client and a professional” confidential. Section 2(b) states that “records of the identity, diagnosis, evaluation, or treatment of a patient/client which are created or maintained by a professional” are likewise confidential. These are separate subsections dealing with separate subjects — communications and records. The word “identity” appears only in the subsection dealing with records. Abell’s patient/client records are not involved in this case, only Abell’s identification of former patients. Identities are declared confidential only in records where the information contained in the records could be matched with a patient’s name. Without any justification found in the language of article 5561h, the court has lumped the two subsections together.

¶4“Communication" has been defined as the action of communicating or imparting; the imparting, conveying or exchange of ideas, knowledge, information, etc., whether by speech, writing, or signs; that which is communicated; the interchange of speech, conversation, or conference. Oxford English Dictionary, Oxford University Press, 1971. Words and terms in a statute are to be given their ordinary, commonly accepted meaning unless it appears from the context *264that a different meaning plainly was intended by the legislature. Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969); Fletcher v. Bordelon, 56 S.W.2d 313, 318 (Tex.Civ.App.—Beaumont 1933, error ref’d). There is nothing in article 5561h that indicates an intent to extend the privilege to communications that do not relate to the professional relationship between the professional and the patient/client. It certainly was not intended to include extra-marital sexual affairs between the professional and patient/client. Nor can it be argued seriously that a social engagement between the professional and his patient/client would be privileged. Nor would committing an act of physical violence or the defrauding of one by the other in a business joiht venture fall within the scope of the professional relationship of the two and thus be privileged. I can conceive of no reason why the privilege should be extended to transactions, events, or facts outside of the scope of the professional relationship. The legislative intent is clear that only those communications which fall within the professional relationship, i. e., that relate to the diagnosis, evaluation or treatment of the patient/client are entitled to the privilege.

¶5An examination of the entire act demonstrates that the legislature did not intend for the privilege to be an absolute one; the numerous exceptions to the privilege contained in section 4 are proof of that. Subsection (a) sets forth four exceptions applicable in court proceedings, none of which are applicable here, and subsection (b) sets forth another seven exceptions. Many of the exceptions in section 4 relate to disclosure by the professional to third persons for some legitimate societal purpose, e. g., disclosure to government agencies, medical and law enforcement agencies, auditors, evaluators, and research agencies, personal representatives such as guardians, other consulting professionals, and even fee collection agencies and governmental agencies from which payment for services rendered is sought. Thus it is clear that the legislature, while intending to make confidential those communications and records pertaining to mental illness or emotional health, did not intend that the privilege be totally encompassing. The statute’s purpose is more of a protection against an invasion of privacy rather than a privilege. Martinez v. Rutledge, 592 S.W.2d 398, 400 (Tex.Civ.App.—Dallas 1979, writ ref’d n. r. e.). Even the title of the act reflects that a limited privilege was contemplated, not the complete one described by the court:

An act relating to the confidentiality of certain information pertaining to the mental or emotional health of an individual; .... 1979 Tex.Gen.Laws, ch. 239, at 512. (Emphasis added.)

¶6Abell has specifically denied in his answers to interrogatories and admissions that his sexual contacts with the plaintiffs were a part of his professional treatment of the plaintiffs. It follows, therefore, that any sexual contacts had with any other female patients or clients were likewise not a part of his treatment of them and were not encompassed within his professional relationship with them. Even though divulging the identities and information asked about in interrogatory. 50 might be embarrassing to some of Abell’s former patients/clients, the information does not come within the privilege of the statute. To broaden the privilege as the court has done seems to be in direct conflict with the Ethical Standards of Psychologists as stated by the American Psychological Association. These standards provide in part:

PRINCIPAL 6.

WELFARE OF THE CONSUMER

a. Psychologists are continually cognizant of their own needs and of their inherently powerful position vis a vis clients, in order to avoid exploiting their trust and dependency. Psychologists make every effort to avoid dual relationships with clients and/or relationships which might impair their professional judgment or increase the risk of client exploitation. Examples of such dual relationships include treating employees, supervisees, close friends or relatives. Sexual intimacies with clients are unethical.

¶7*265While one can appreciate Abell’s ostensible desire not to “kiss and tell,” plaintiffs in this case have alleged that Abell’s seductions of them were but single sordid chapters in his pursuit of a course of conduct during psychotherapy which was not unusual or unique to him. The interrogatories and admissions on file strongly hint that Abell’s defenses to plaintiffs’ action will include his contention that each of the plaintiffs initiated the sexual advances. Upon trial, the jury will be asked to judge the credibility of Abell’s version of what happened vis a vis each plaintiff’s version as to events occurring behind closed doors to which there were no other witnesses. It cannot be denied that under these circumstances it is important, perhaps even crucial, to plaintiffs’ case to be afforded an opportunity to show a course of conduct of the defendant Abell.

¶8Abell complains that if he is required to answer the interrogatory, he is placed in an impossible situation. He asserts that answering the interrogatory will subject him to suits for damages brought by his former patients under section 5 of the act. The quick answer to this argument is that since the sexual contacts inquired about are not privileged communications, no cause of action for violating the statute arises. Furthermore, a professional who gives testimony or evidence in the course of a judicial proceeding is absolutely privileged and immune from civil liability based on his testimony. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942); Clark v. Grigson, 579 S.W.2d 263, 265 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.). This immunity from civil liability is essential to encourage unrestrained access to the courts and full development of the facts in proceedings designed to find the truth, and overrides competing considerations in most cases. Lehnhard v. Moore, 401 S.W.2d 232, 235 (Tex.1966).

¶9Since I would deny Abell’s application on statutory grounds, it is necessary to address his next contention that a constitutional right of privacy extends to the psychotherapist-patient relationship and therefore excuses Abell from answering the interrogatory. The alleged right is being asserted on behalf of Abell’s former patients and draws its substance from the uniqueness of the relationship and the psychological needs and expectations of his patients. Abell also claims that his own personal right of privacy protects him from answering an interrogatory disclosing his sexual contact with former patients.

¶10An individual’s constitutional right of privacy has been recognized by both federal and Texas courts although these decisions do not define with any specificity just exactly what this right encompasses.1 There is universal recognition that in any society a total right of privacy is infeasible, particularly where disclosure is concerned.2 In Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), Justice Brandéis called the right to be let alone “the most comprehensive of rights and the right most valued by civilized men.” Later decisions, however, indicate that only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in the guarantee of personal privacy. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977); Paul v. Davis, 424 U.S. 693, 713, 96 *266S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex.1976).

¶11The basis for the right to privacy in varying contexts, is found in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); in the penumbra of the Bill of Rights, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); and in the concept of liberty guaranteed by the Fourteenth Amendment, Roe v. Wade, supra.

¶12To date, several areas have been denoted constitutionally protected zones of privacy: activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); child rearing, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); contraception, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); abortion, Roe v. Wade, supra.The Court deemed these personal activities to be so fundamental as to require constitutional protection from state interference.

¶13When the court finds a personal privacy right to be fundamental, the state must show a compelling interest before invading the designated zone of privacy. Roe v. Wade, supra, 410 U.S. at 178, 93 S.Ct. at 739. However, where a privacy interest has been recognized but not afforded “fundamental” status, the state need only show a rational basis for its interference or regulation in the area.

¶14In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the U.S. Supreme Court recognized that the cases involving privacy concern two different kinds of interests. “One is the individual interest in avoiding disclosure or personal matters, and another is the interest in independence in making certain kinds of important decisions.” We are here concerned with the first — disclosure.3 Although recognizing the interest of the individual in avoiding disclosure, the Whalencourt held that a New York program that required disclosure of the names of patients using certain drugs did not pose a sufficiently grievous threat to establish a constitutional violation and that the State’s regulation had a rational basis. The Whalencourt established that the interest of an individual in avoiding disclosure of personal matters is not all-encompassing, but the individual’s right to privacy must be weighed against the impact and threat involved in a state requiring disclosure.4 Where the impact of threat is sufficiently grievous, constitutional protection is afforded and the state must show a compelling interest in requiring disclosure.

¶15From a reading of Whalen v. Roe and the prior cases involving privacy, there appear to be two approaches involved in analyzing an individual’s right to privacy. A distinction arises between cases dealing with a state’s regulation of activities and relationships and a state’s requirement of disclosure of these activities. In the area of disclosure, a two-step process of inquiry emerges. The court must first determine whether the information sought to be disclosed concerns a fundamental privacy right, i. e., a protected zone of privacy. If the information does not concern a protected zone of privacy, then according to Whalenthe court must still weigh the impact and threat of disclosure against the state’s interest involved. This approach recognizes that many private activities may not be entitled to privacy protection as fundamental rights, but *267nevertheless, a person may have a valid interest in maintaining the privacy of those activities.

¶16Significantly, the U.S. Supreme Court has not extended the zone of privacy to the analogous doctor-patient relationship;5 however, several decisions of other courts have indicated that a patient’s right of privacy affords him protection from forced disclosure of confidential communications made during treatment or therapy. Hawaii Psychiatric Society v. Ariyoshi, 481 F.Supp. 1028 (1979); Caesar v. Mountanos, 542 F.2d 1064 (9th Cir. 1976); In re Lifschultz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1 (1970). Nevertheless, these cases also have indicated exceptions to this rule such as when a patient places his mental condition in issue in a court proceeding.

¶17The rationale for those decisions protecting the privacy involved in the psychotherapist-patient relationship is the concern over disclosure of highly personal matters and its effect on the patient. The unique nature of psychotherapy involves a probing of the patient’s emotions and subconscious thoughts and requires an environment of total confidentiality and trust.6

¶18Under the circumstances presented in this case, however, it is unnecessary to determine the broad question concerning whether the psychotherapist-patient relationship is a fundamental personal right protected by a constitutional zone of privacy. As discussed earlier the conduct or activity inquired about here in the interrogatory is not the type of activity covered by that relationship. Abell has consistently admitted that sexual contact with his patients was not a form of therapy and his patients were not billed for this activity.

¶19The question, therefore, resolves into whether Abell’s former patients have a privacy right in the fact of psychological treatment which would spare Abell from disclosing their names. Even though sexual contact was not encompassed in this psychotherapist-patient relationship, the fact that these women were former patients indicates that they were in fact receiving some sort of treatment. Treatment for mental illness is not the bane it once was. The fact that the profession of psychotherapy has flourished indicates people’s recognition and acceptance of psychotherapy. Many insurance policies now cover psychotherapy. In this enlightened age, the fact of treatment is not so fundamental to our concept of ordered liberty that disclosure of that fact in a civil proceeding constitutes an unconstitutional invasion of privacy. The U.S. Supreme Court in Paul v. Davis, supra 442 U.S. at 712, 96 S.Ct. at 1166, intimated that a person’s interest in his or her reputation is not a fundamental right.

¶20A court must, therefore, under the mandate of Whalen v. Roe, weigh the threat of disclosure of the fact of treatment and its impact on the individual against the state’s interest in enforcing its discovery orders in a civil proceeding.

¶21The trial court’s order in this case provides significant protection against public *268disclosure of these names. The patients’ names are to be disclosed only to the parties and their attorneys. Counsel are prohibited from making public disclosure of such names. The information will be presented to the court in a sealed envelope, and the court will maintain continual jurisdiction over the disclosure of any names, including the issuance of subpoenas. The names will be correlated to a number or letter of the alphabet for any future reference. Much stronger protection is present here than that afforded the patients in Whalen.

¶22Since the fact of psychological treatment is not a fundamental right, the inquiry becomes whether the state has a rational basis for the enforcement of the trial court’s discovery order in this case. Having examined the threat and impact of public disclosure of these patients’ fact of treatment, we must weigh the state’s interest in disclosure under the present circumstances.

¶23I would hold that the state has a valid and rational basis for requiring discovery in this instance. The trial court has already deemed the material relevant. Abell, and vicariously his patients, are claiming an exemption or privilege from furnishing information in this litigation. Dean Wigmore has stated: “For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence.” 8 Wigmore, Evidence § 2192. See United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1949). As a general rule, every citizen has the testimonial duty to give a court of law the information he has, which duty exists not merely for the case at bar, but to the community at large and forever for the ascertainment of truth in a trial which seeks the truth. Lehnhard v. Moore, 401 S.W.2d 232, 235 (Tex.1966). The duty to testify may on occasion be burdensome and embarrassing. “It may cause injury to a witness’s social and economic status. Yet the duty to testify has been regarded as so necessary to the administration of justice that the witness’s personal interest in privacy must yield to the public’s overriding interest in full disclosure.” United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974) ctg. Blair v. United States, 250 U.S. 273 at 281, 39 S.Ct. 468 at 471, 63 L.Ed. 979 (1919).

¶24The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in the present cause, but to the community at large and forever. 8 Wig-more, Evidence § 2192; Lehnhard v. Moore, supra.Further “ . .. no man is to be denied the enforcement of his rights merely because another possesses the facts without which the right cannot be ascertained and enforced.” 58 Am.Jur., Witnesses § 29; 8 Wigmore, Evidence § 2212.

¶25I conclude that the state has a strong interest in providing a forum for resolution of claims and in ascertaining the truth for the enforcement of rights. Further the state has the power to regulate its authority over discovery matters. I cannot envision a day when every request for admission or interrogatory would be answered with a federal constitutional claim of privacy. To accept Abell’s contentions would result in a flood of cases in the federal courts seeking relief in discovery matters based on the constitutional right to privacy. In Lehnhard v. Moore, supra, at 235, this court quoted with approval this statement:

Undoubtedly the duty so imposed at times involves material sacrifice, even invasion of personal privacy, and is carried out at great inconvenience, but this is the price we pay to secure the effective administration of justice.

¶26The state also has an interest in the health and welfare of its citizens and the regulation of psychotherapists. As stated in Roy v. Hartogs, 366 N.Y.S.2d 297, 301, 81 Misc.2d 350 (1975):

... there is a public policy to protect a patient from the deliberate and malicious abuse of power and breach of trust by a psychiatrist when the patient entrusts to him her body and mind in the hope that he will use his best efforts to effect a cure. That right is best protected by permitting the victim to pursue civil rem*269edies, not only to vindicate a wrong against her but to vindicate the public interest as well.

¶27The former patients of Abell are sufficiently protected by the court’s order and their privacy must give way to the plaintiffs’ right to pursue their civil remedies.

¶28Finally, I address Abell’s argument that he is protected from disclosing his sexual intimacies because, as Abell asserts, this is adult consensual sexual behavior. As discussed earlier, the right of privacy has been extended to many areas dealing with the sexual relationship. Yet the right has not been extended to include sexual intercourse between consenting adults.7 The U.S. Supreme Court has recognized the states’ interest in regulating adultery, McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964); Hollenbaugh v. Carnegie Free Library, 436 F.Supp. 1328 (W.D.Pa.1977); in regulating homosexual conduct, Doe v. Commonwealth’s Attorney, 403 F.Supp. 1199 (E.D.Va.1975) aff’d 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1967); and in regulating prostitution, Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917). Here the state is not regulating any protected conduct — it is only requiring disclosure where the trial court has deemed such disclosure relevant to a civil proceeding. Abell is afforded ample protection by the trial court’s order. I cannot stretch the right of privacy to protect Abell from limited disclosure of facts so necessary for the just adjudication of plaintiffs’ claim.

¶29Finally, the court’s opinion suggests that the interrogatory is too broad, that it goes far beyond sexual activity and requires the names of those with whom defendant has had virtually any physical contact or touching whatsoever, including shaking hands. I cannot agree. The clear import of the interrogatory read in its entirety and in context asks only about sexual contacts and sexual touching, not friendly platonic gestures of friendship or assurance without sexual connotations.

¶30It is difficult to fault the court for its chivalrous desire to protect the unnamed female former patients of Abell, but I venture to say that we would not have been as protective of former male patients. This gender-based discrimination, though, is consistent with former decisions of this court. See In the Interest of T.E.T., 603 S.W.2d 793 (Tex.1980). The sad result of this chivalry, however, is the needless mischief inflicted on the time-honored goal of a trial which is to seek the truth. Fetters and chains placed on the search for truth drain the very blood from the body of justice and should be narrowly construed else we frustrate the very purpose of a trial. The court’s decision commits further injustice, unintended by the legislature. It allows a professional engaged in psychotherapy to inflict serious psychological damage to his patient while it cloaks him with the protection of the privilege to conceal his own wrongs. Finally, it has allowed the privilege to be claimed for the benefit of the wrongdoer, not the wronged. Under the circumstances of this case, Abell should not be excused from answering the interrogatory. Article 5561h does not prohibit Abell from disclosing the conduct inquired about in the interrogatory, and the constitutional right to privacy has not been extended to cover the activity or relationship involved in this case. The writ of habeas corpus should be denied.

¶31CAMPBELL, RAY and WALLACE, JJ., join in this dissenting opinion.