Protecting the confidentiality of the therapeutic relationship: Jaffee v. Redmond.

Virtually since its inception, the profession of social work has been regarded by many to be a "semi"-profession, hovering somewhere between the established professions of law, medicine, and psychology and less skilled occupations such as craftsmen and clerical workers (Greenwood, 1957). With its roots in the friendly visitors and settlement workers of the late 19th century (Day, 1997), social work at times seemed more like a calling than a skill, a way to "do good" rather than a professional occupation. This view has lessened over the years as social work has acquired the essential attributes of a profession, including a solid theoretical base and an ethical code (Greenwood). But even today some uncertainties still linger, with the community's sanction of the profession-an essential attribute according to Greenwood--sometimes lacking. However, doubts about the authenticity of social work as a profession and its acceptance as such by the larger community were dispelled by no less an institution than the Supre me Court, in its 1996 decision in Jaffee v. Redmond. At issue in Jaffee was whether conversations between a social worker and her client are privileged communications and thus protected from forced disclosure in a civil action in federal court. The petitioner, Carrie Jaffee, was the administrator of the estate of Picky Allen, who had been killed by the respondent, Mary Redmond, a police officer. Jaffee filed suit in federal court alleging that the respondent had violated Allen's constitutional rights by using excessive force when responding to a police call at an apartment complex. After discovering that Redmond sought help from a licensed clinical social worker after the shooting, Jaffee sought access to the notes concerning 50 counseling sessions. Redmond resisted disclosure, even after the trial court ordered that the notes be turned over, claiming that the conversations were privileged because they occurred between a psychotherapist and her patient. Jaffee was a case of first impression for the Supreme Court, which had never before addressed the issue of whether a psychotherapist privilege existed for social workers or any of the other therapeutic disciplines, including psychiatry and psychology. The Court granted certiorari because of the importance of the issue and because the lower appeals courts could not agree on whether such a privilege existed. The Jaffee Court conducted a two-step analysis. First the Court determined whether a psychotherapist privilege should exist. Then, it decided whether the privilege should include social workers. (That this required a separate analysis is revealing. It meant that to the Court, social workers, unlike psychiatrists and psychologists, were not--at first glance--necessarily synonymous with the term psychotherapist.) The most significant hurdle the Court faced in creating a new privilege was the 300-year-old axiom "that the public [ldots] has a right to every man's evidence". (Jaffee v. Redmond, p. 1928). The principle and values underlying this rule go to the very heart of our justice system--the search for truth. Simply put, excluding facts can result in erroneous and misguided judgments. It can prevent the truth from coming out or make it difficult to determine what the truth is. For example, in Jaffee there were conflicting eyewitness accounts over the "gravamen" of the complaint, whether Redmond had used excessive force. Any statements made by Redmond to her therapist that she had used excessive force would have resolved this conflicting testimony. The majority opinion (joined by seven of the Justices) quickly dispensed with the notion that "every man's evidence" meant every piece of evidence. It recognized that the search for truth must, at times, yield to the public good. To determine when it should yield, the Court applied a balancing test, weighing the value of aggressive fact finding with the value of the psychotherapist privilege. …