Helen A. Anderson, The Psychotherapist Privilege: Privacy and "Garden Variety" Emotional Distress, 21 Geo. Mason L. Rev. 117 (2013), https://digitalcommons.law.uw.edu/faculty-articles/215
George Mason Law Review
Surprisingly, there is no clear authority on implied waiver of the psychotherapist-patient privilege in federal courts. There is binding authority from the Supreme Court establishing the privilege, but the bold outlines of that decision have been blurred in the confusion about implied waiver.
This Article explores one aspect of that confusion: the popular "garden variety" approach, which favors plaintiffs with what the court deems garden variety, or "normal," mental distress. Although a few other scholars have written on the confusion in the law of implied waiver, this is the first article to look closely at the garden variety approach, which is emerging as the dominant approach.
It is also the first to survey the laws of the fifty states on implied waiver, as part of a "reason and experience" analysis under Evidence Rule 501. That rule states that privilege "shall be governed by the principles of the common law" as interpreted by the federal courts "in the light of reason and experience."
This Article traces the development of the garden variety approach to waiver of the psychotherapist-patient privilege in federal court, critiques that approach, and suggests an alternative. Part I begins with the history of the Supreme Court's adoption of the psychotherapist-patient privilege. It also looks at the context for the implied waiver issue-namely, the civil rights legislation under which the issue usually arises and the changing patterns of mental health treatment which make the issue so common. Part I concludes with a look at the federal court decisions on implied waiver, explaining the lack of clear authority and the three general approaches that have emerged, with emphasis on the dominant garden variety approach.
Next, Part II presents an alternative analysis to what the courts have so far provided. This section discusses how the garden variety approach, despite its compromise appeal, undermines the goals of civil rights legislation, reinforces outmoded bias against mental health treatment, and does nothing to lessen uncertainty for litigants. Part II then follows the "reason and experience" template laid out in Jaffee to determine the best approach to implied waiver in civil rights cases. That template suggests that we first determine the important public good involved and then consult sources such as the Advisory Committee proposals and notes and the laws of the states.
However, this Article concludes that such an analysis—although illuminating—leads to no clear answer, other than to suggest the propriety of legislation. Finally, Part III suggests a possible legislative fix: allow civil rights plaintiffs to seek moderate damages in a sum certain, rather than actual damages, and maintain their psychotherapist-patient privilege. This proposal is limited to civil rights plaintiffs, whose cases implicate the additional public good of federal civil rights policy. Although a more general federal statute or court rule on waiver of the privilege may be desirable, this Article is concerned with the particular issues raised in civil rights litigation.