The Liability of Psychotherapists for Breach of Confidentiality

I. INTRODUCTION A. Confidentiality as a Major Component of the Therapeutic Relationship Since its earliest beginnings, psychotherapy has been concerned with confidential communications. When a patient and a psychotherapist enter into a therapeutic relationship, the patient starts to reveal details about his thoughts and feelings that he or she may have told no other. The therapist becomes the "keeper of the secrets."(2) Freud, himself, was concerned about revealing case histories of his patients.(3) When he wrote about the hysteria of his patient Dora, and that her symptoms were the expression of her most secret and repressed wishes, he felt it necessary to discuss the intimacies of which she had spoken. This was, in effect, a betrayal of her secrets.(4) Freud said, "It is certain that the patients would never have spoken if it had occurred to them that their admissions might possibly be put to scientific uses, and it is equally certain that to ask them themselves for leave to publish their case would be quite unavailing."(5) Freud felt a greater obligation as a physician to publish what he believed to be the causes of his patient's disease, in order to educate others, and stated it was cowardice to neglect to do so.(6) Although confidentiality has been a major component of the psychotherapeutic relationship since Freud, sometimes there is a breach of that confidentiality. Patients will seek to hold the therapist liable for the breach. This paper will touch upon the nature of a cause of action of breach of confidentiality by psychotherapists, and how the courts have handled these cases. It will discuss the scarcity of cases in this area of the law, and why this scarcity exists. It will also explain why there is confusion in the courts as to how to rule in breach of confidentiality cases. In 1982, one commentator(7) noted that the courts were "just beginning to formulate an adequate common law remedy for unconsented disclosures of personal information in breach of confidence."(8) This same commentator stated that while some courts had clearly recognized a breach of confidence tort, most courts had resorted to "a confused tangle of legal theories, including invasion of privacy, implied term of contract, implied private cause of action in statute, and tortious breach of confidence."(9) In 1997, this "confused tangle of legal theories" has not always been made clearer by the plaintiffs, by the defendants, or by the courts. This paper will try to reconstruct the legal and ethical underpinnings of the confidential relationship of psychotherapist and patient, and will also touch upon the psychotherapist-patient testimonial privilege and its exceptions. It will then describe the liability of psychotherapists for breach of confidentiality based on contract and tort. It will conclude with some evaluation of this type of cause of action, and its future usefulness in the law. More than ever before, the public has become aware of breach of confidentiality of the therapeutic relationship. In 1986, when Diane Wood Middlebrook was writing an authorized biography of the poet Anne Sexton, Anne Sexton's psychiatrist made 300 therapy tapes available to the biographer.(10) Although Anne Sexton had provided detailed instructions in her will about the disposition of her papers, including some therapy notebooks and four audio tapes of therapy sessions with her psychiatrist Dr. Martin Orne,(11) she had left 300 tapes in Dr. Orne's possession, with no instructions as to their disposition. Dr. Orne had the permission of Sexton's daughter and literary executor, Linda Gray Sexton, to allow Middlebrook to hear the tapes.(12) This release of Sexton's therapy tapes caused great consternation in literary and psychiatric circles.(13) One psychiatrist called Dr. Orne's actions a "betrayal of his patient and his profession."(14) Another noted the right of confidentiality survives the patient's death, and only the patient can give a release. …