Amicus Brief — Caesar v. Mountanos

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In the Supreme Court of he me.

United States CLE

October Term, 1976

— 76-804:

No.

GEORGE R. CAESAR, M.D.,

Petitioner,

vs.

Louis P. MOUNTANOS, as Sheriff of the

County of Marin, State of California, et al.,

Réspondents.

Amicus Curiae Brief of

California Medical Association

in Support of Petition

for Writ of Certiorari

to the United States of Appeals

for the Ninth Circuit

HASSARD, BONNINGTON, ROGERS

& HUBER

DAVID E. WILLETT, Esq.

44 Montgomery St., Suite 3500

San Francisco, CA 94104

Telephone: (415) 982-8585

Attorneys for Amicus Curiae

California Medical Associa-

tion in support of Petitioner

Dr. Caesar

INTER.CITY PRINTING COMPANY, OAKLAND. CALIFORNIA 84607

—-_,

SUBJECT INDEX

Page

Statement of Interest of Amicus Curiae

California Medical Assoeiatioti.. coo cccccccccccccccccccccecennee l

Argument in Support of Petition for Writ of Certiorari.................. 2

SE ee 2

Il. The Patient's Right of Privacy Would Be Violated If the

Psychotherapist Were Forced to Reveal Intimate Details of

= — Sexual, Family, Medical, or Other Psychological ,

ro WD cccccccccsceccccccceccccsscocccccscnsccesccesccccceccesenesececescess cons ceesecessccoses ‘

111. The Psychotherapeutic Process Requires Confidentiality.......... 6

IV. Private Communications Are the Essence of Psychotherapy... 9

V. The Matters Communicated from Patient to Psychotherapist

Are of Such a Private Nature That They Should Be Privileged 12

CoMmelwsion ooccccccccccccccccceceees a ies Lane is catiainsddietidiaaemnbbdasiiaiadinede 14

Affidavit of Service by Mail... aneniiemintineen snitesittieain 17

TABLE OF AUTHORITIES CITED

Cases

Bates v. Little Rock,

361 U.S. 516, 80 S.Ct. 412, 4 L.Ed. 2d 480 (1960). 12

Doe v. Bolton, 410 U.S, 170, 93 S.Ct. 739, 35 L.Ed, 2d 201 (1973) 5,6

Eisenstadt v. Baird,

405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed, 2d 349 (1972) 000000... 5

Griswold v. Connecticut,

381 U.S, 479, 85 S.Ct. 1678, 14 L.Ed. 2d 510 (1965)............ 3, 5

Olmstead v. United States, 277 U.S. 438,

48 S.Ct. 564, .., 72 L.Ed, 944, 66 A.L.R. 376 (1928) 000... 3

Planned Parenthood of Central Missouri v. Danforth,

—]| Sear § § =; i iiGnn aE 5

Roe v. Wade, 410 U.S, 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973) 3,5

Taylor v. United States, 222 F.2d 399, (D.C, Cir, 1955)................ 7,8

United States v. Twelve 200 Ft. Reels of Super 8 mm. Film,

413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed. 2d 500 (1973)... 4

TREATISES

Burger, (Chief Justice), .......c0ccccsesesesesesneresesneneseeneees

28 Fed.Prob. V.I1 7 (1964)............0.. ence 13

Fix & Haffke, Basic + ge Therapises :

Comparative Effectiveness, (1976) 0.00.0... cccceeeeeerenernnnes 6

J. Katz, J. Goldstein & A. Dershowitz,

Psychotherapy, Psychoanalysis and the Law, (1967)............ 8

Harper, Psychoanalysis and Psychotherapy: 36 Systems (1959)... 14

London, Modes and Morals of Psychotherapy, (1964) ....0..00.0........ 6

In the Supreme Court of the

United States

October Term, 1976

GEORGE R. CAESAR, M.D., |

Petitioner,

VS.

Louis P. MOUNTANOS, as Sheriff of the

County of Marin, State of California, et al.,

Respondents.

Amicus Curiae Brief of

California Medical Association

in Support of Petition

for Writ of Certiorari

to the United States of Appeals

for the Ninth Circuit

STATEMENT OF INTEREST OF AMICUS CURIAE

CALIFORNIA MEDICAL ASSOCIATION

Amicus curiae, California Medical Association

(“CMA”), is a non-profit, unincorporated associa-

tion consisting of more than 22,000 California physi-

cians, and as such is the largest state medical asso-

2

ciation in the United States. Approximately 1,100

CMA members are psychiatrists, primarily engaged

in the practice of psychotherapy. Petitioner George R.

Caesar, M.D., is a member of the California Medical

Association.

The CMA’s primary purposes are to promote the

science and art of medicine and the protection of the

public health. The issue presented in this case is of

crucial importance to the protection of the public

health. Additionally, the ruling below will send physi-

cians to jail if they fairly discharge responsibilities

to patients attributable to the science and ethics of

their profession.

Accordingly, we have reviewed the record on ap-

peal in this case, and are familiar with the questions

presented. On the basis of that review, counsel be-

lieves that the Supreme Court should grant certiorari

in this case, and offer the following brief in support

of Dr. Caesar’s Petition for Writ of Certiorari.

ARGUMENIT IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

I.

INTRODUCTION

The Petition should be granted for these reasons:

1. The testimony which is sought from Dr. Caesar

deals with the matters clearly within the most funda-

mental and protected right of personal privacy.

»

ow

2. The very nature of psychotherapy is such that

the patient is unable to understand the full implica-

tions should a psychotherapist be forced to disclose

confidences in the course of litigation, and thus the

patient cannot give knowing and informed consent

to such disclosures.

3. Forcing the psychotherapist to testify violates

the patient’s constitutionally protected right of pri-

vacy, threatening great harm to both his individual

well-being and the welfare of the community.

.

4. Such forced disclosure serves no compelling or

even useful state interest.

THE PATIENT'S RIGHT OF PRIVACY WOULD BE VIOLATED

IF THE PSYCHOTHERAPIST WERE FORCED TO REVEAL INTI-

MATE DETAILS OF THE PATIENT'S SEXUAL, FAMILY, MEDI-

CAL, OR OTHER PSYCHOLOGICAL PROBLEMS.

A person has the right to be free from unwar-

ranted governmental intrusions into his or her pri-

vacy. (Griswold v. Connecticut, 2381 U.S. 479, 85 S.Ct.

1678, 14 L.Ed. 2d 510 (1965).) This right of privacy

is so fundamental that the Court has attributed the

source of the right variously to the t.rst, Fourth,

Fifth, Ninth, and Fourteenth Amendments, as well

as to the penumbra of the Bill of Rights. (See dis-

cussion in Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct.

705, 726, 35 L.Ed. 2d 147, 176 (1973).) As eloquently

summarized by Justice Brandeis, dissenting in Olm-

4

stead v. United States, 277 U.S. 438, 478, 48 S.Ct.

564, 572, 72 L.Ed. 944, 956, 66 A.L.R. 376, 391 (1928) :

“The makers of the Constitution undertook to

secure conditions favorable to the pursuit of

happiness. They recognized the significance of

man’s spiritual nature, of his feelings, and of

his intellect. They knew that only a part of the

pain, pleasure and satisfactions of life are to

be found in material things. They sought

to protect Americans in their beliefs, their

thoughts, their emotions, and their sensations.

They conferred, as against the government,

the right to be let alone—the most compre-

hensive of rights and the right most valued by

civilized men.

To delimit this right of privacy, the Court has

defined certain ‘zones of privacy’ to protect indi-

viduals from state intrusion into intimate and per-

sonal activities. In the case of United States v. Twelve

200 Ft. Reels of Super 8 mm. Film, 413 U.S. 123,

127, n. 4, 93 S.Ct. 2665, 2668, n. 4, 37 L.Ed. 2d 500,

505, n. 4 (1973), the Court stated that the right of pri-

vacy “encompasses the intimate medical problems of

family, marriage and motherhood.” Surely a patient’s

discussion with his psychotherapist of such intimate

problems as medical, family, marital or parental prob-

lems fali within the zone of privacy as contemplated

by the Court. Indeed, it is through the discussion of

such problems that the patient struggles toward heal-

ing in psychotherapy.

Consider, for example, a patient who seeks help

for a psychosexual disturbance. In the course of treat-

ment, the patient would surely reveal his most inti-

mate secrets to the psychotherapist, if therapy is to

be effective. The Supreme Court has already held that

an individual’s sexual relations are not properly

probed by the State. Griswold v. Connecticut, supra;

Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31

L.Ed. 2d 349 (1972). Are an individual’s thoughts

of sex less private than the sexual act itself? When

discussed in the course of psychotherapy, do such

thoughts lose their intimate character? Surely, the

inner thoughts, fancies, dreams, and depressions of

individuals are deserving of the most sensitive pro-

tection under the constitutional right of privacy.

Accordingly, they should not be invaded by re-

quiring psychotherapists to disclose confidential com-

munications.

Additionally, a particularized form of the consti-

tutional right of privacy is evolving to protect the

patient-physician relationship. This medical right of

privacy would be violated in the present case if Dr.

Caesar were required to testify. (Planned Parent-

hood of Central Missouri v. Danforth, ........ USS. ........

[44 U.S.L.W. 5197] (1976); Roe v. Wade, 410 US.

113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973) (See espe-

cially, Douglas, J., concurring at 410 U.S. 209, et

seq.); Doe v. Bolton, 410 U.S. 170, 93 S.Ct. 739, 35

L.Ed. 2d 201 (1973).) Under this medical right of

privacy, a patient, in consultation with, and under

6

the care of, his physician may make important medi-

cal determinations free of governmental interfer-

ence. (Doe v. Bolton, supra, and Planned Parenthood

of Central Missouri v. Danforth, supra.)

THE PSYCHOTHERAPEUTIC PROCESS REQUIRES CONFI-

DENTIALITY.

It may well be that the lower courts’ insistence

on forcing testimony from the psychotherapist is at-

tributable to unfamiliarity with psychotherapy itself.

Psychotherapy has recently been defined as “any pro-

cedure delivered by a licensed mental health profes-

sional that (1) relies on “talking” as the major com-

ponent and (2) is based on any technique directly

taught or simulated through training at a medical

or other professional school.” (Fix & Haffke, Basic

Psychological Therapies: Comparative Effectiveness,

24 (1976).

Indeed, psychotherapy is a facilitative communi-

cation relationship in which the psychotherapist and

patient interact. It is upon the interaction of psycho-

therapist and patient that the psychotherapeutic

“healing” depends. The process of psychotherapy,

however, is not one of simple exposition by the pa-

tient at the prodding of the psychotherapist, or the

question and answer session which lawyers attuned

to depositions may have in mind. (See, London, Modes

and Morals of Psychotherapy, 12 (1964).)

7

Psychotherapy seeks to resolve the innermost con-

flicts of disturbed or distressed individuals. Through

talking, the patient is encouraged to explore, expose,

confront and cope with sources of his psychological

problems. The most sensitive and painful areas of

human emotions and experiences are often laid bare.

Sources of repressed guilt or shame, latent longings

—matters buried deep in the subconscious—are all

called out and examined by the psychotherapist. As

stated in Taylor v. United States, 222 F.2d 399, 401

(D.C. Cir. 1955): “The psychiatric patient confides

{in his therapist] more utterly than anyone else in

the world. . . . [Hje lays bare his entire self, his

dreams, his fantasies, his sins, and his shame.”

During the course of life, the mind defensively

represses uncomfortable or distressing experiences

into the subconscious. Often these experiences are a

source of shame or anxiety to the patient. If the

guilt or psychological discomfort of such experiences

is so great that the patient’s conscious mind sup-

presses it, then surely the patient does not desire to

have this problem aired in the public record. As

stated by Judge Hufstedler in her dissent below:

The patient’s innermost thoughts may be so

frightening, embarrassing, shameful or morbid

that the patient in therapy will struggle to re-

main sick, rather than to reveal those thoughts

even to himself. The possibility that the psycho-

therapist could be compelled to reveal those

8

communications to anyone, let alone broadcast

them in a legal proceedings, can deter persons

from seeking needed treatment and destroy

treatment in progress. (See, eg., Taylor v.

United States, supra; J. Katz, J. Goldstein &

A. Dershowitz, Psychotherapy, Psychoanalysis

and the Law, 726-27 (1967).)

Judge Hufstedler’s recognition of the role of the

subconscious—that which the patient will not recog-

nize or admit “even to himself’”—is crucial. The men-

tal mechanisms by which each of us cope with life

—successfully or unsuccessfully—are internal mech-

anisms of control unconsciously selected and operating

automatically. The mechanism unconsciously selected

to meet emotional needs and stresses and to provide

a defense against anxiety, the extent of its employ-

ment and the degree to which it distorts the person-

ality, dominates the behavior and disturbs adjust-

ment, determine the measure of mental health. In

his interaction with the patient, the psychotherapist

searches for information about these subconscious

processes. By their very nature, the patient does not

recognize or understand processes as they take place

in his own case, the significance of underlying in-

formation, or other factors which are significant to

the psychotherapist. The patient does not have the

psychotherapist’s perspective on the course of therapy.

Yet, those who would oppose this Petition would place

the burden on the patient to protect the confidentiality

of the relationship. The position of the opposition is

9

that a victim of an accident who suffers emotional

problems and seeks psychotherapeutic help then waives

all confidentiality by subsequently bringing suit. The

opposition would say that the patient/victim controls

the choice of disclosure. Yet the patient does not

understand the psychotherapeutic interaction which

is occurring in his case and thus cannot judge the

impact of disclosure. Indeed, the patient probably

does not know the significance of all he is saying in

his therapy sessions. The patient, therefore, is wholly

unable to give knowing and informed consent to sub-

sequent disclosure by the psychotherapist of matters

revealed by the patient to the psychotherapist. Thus,

the psychotherapist must, for therapeutic as well as

constitutional reasons, retain discretion to preserve

the confidentiality of patient communications.

IV.

PRIVATE COMMUNICATIONS ARE THE ESSENCE OF PSY-

CHOTHERAPY.

Psychiatry, including psychotherapy, undoubtedly

is still in its infancy as a science. In recent years,

great strides have been made in remedying the hope-

lessness, fear, and despair afflicting the mentally ill.

Psychotherapy is no longer reserved to the institu-

tionalized patient. Increasing recognition of emotional

illness means that anyone may be seen by a psycho-

therapist for professional treatment. The value of

such treatment probably can be appreciated only by

those who have sought such services, whether for

10

themselves or for family members. The importance

of such professional treatment, to individuals or to

the community, is self-evident. The relationship of

the patient’s right of privacy to the provision of this

treatment is summarized by Dr. Caesar’s attorney

in making part of his objections to the questions as

follows:

“Dr. Caesar views his position as a psycho-

therapist administering such treatment as that

of a healer in which his own personality and

his own personal interaction with the patient

are the tools of healing, and to force his per-

sonality to be put at a distance from the pa-

tient in any way in this manner would be to

destroy the opportunity to be a healer.”

(Deposition of Dr. Caesar at page 15.)

At the subsequent hearing on Dr. Caesar’s refusal

to answer the questions, the doctor eloquently stated

why he, as a psychotherapist, could not discuss the

innermost secrets of his patient in this case.

“Although I feel that any breach of confidence

without my patient’s consent is harmful to my

relationship with my patient, J have, in com-

pliance with your order, answered questions

when I felt the answer was not harmful in a

more direct way other than simply by breaking

the confidence.

In other words, I have gone through a

somewhat difficult process of deciding which

answers would, in my opinion, be so harmful

11

as to constitute a serious breach of the ethics

of my profession. These questions I have re-

fused to answer.

(Emphasis added, Transcript of Hearing p. 8.)

* * *

Unlike other physicians . . . the relation-

ship between the patient and the [psychothera-

pist| cannot be separated from the treatment

itself. It is an integral part of that treatment.

If a neurosurgeon must report his objective

findings in a case, if this goes against his pa-

tient’s interest, his relationship with the pa-

tient may suffer, but’ the physical treatment

given the patient will not be affected, but if a

psychiatrist does the same thing, the treatment

will be damaged, or destroyed, because the pa-

tient’s trust in his doctor will be impaired by

the disclosures, and this trust is an integral

part of the therapeutic effect of the relation-

ship on the patient.

* * *

Even if a patient never consults a particu-

lar psychiatrist again, his behavior in the

courtroom can influence the patient’s attitude

toward the profession, and make him reluctant

to consult another psychiatrist; even if he

needs to do so.”

(Emphasis added; Transcript of Hearing pp

11-13.)

In short, Dr. Caesar steadfastly believed that dis-

closure of confidential information not only jeopard-

ized the patient’s constitutional right of privacy, but

12

=

also jeopardized the patient’s health. As Dr. Caesar

stated in his deposition testimony,

“Tto answer| would violate the ethics of my

profession . . . the Hippocratic Oath and what

has been called the first principle of medicine,

primum non nocere, which literally translated

» 99

means ‘first no harm’.

The doctor, therefore, seeks to abide by the highest

standards of medical ethics which require that the

physician not do anything which would harm the

patient. Those who would oppose the petition seek

to compromise those standards.

Vv.

THE MATTERS COMMUNICATED FROM PATIENT TO PSY-

CHOTHERAPIST ARE OF SUCH A PRIVATE NATURE THAT

THEY SHOULD BE PRIVILEGED.

“Where there is a significant encroachment

upon personal liberty, the State may prevail

only upon showing a subordinating interest

which is compelling.” (Bates v. Little Rock,

361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed. 2d

480, 486 (1960).)

Physicians and others practicing psychotherapy

are particularly incensed by the invasion of patient

privacy for two reasons. First, it threatens great

injury to the patient. Secondly, such invasion is un-

likely to produce information of any real utility in

the process of litigation. This latter factor is par-

13

ticularly frustrating to the psychotherapist, who

recognizes that psychotherapy is an inexact science

which depends heavily on trained but subjective

evaluation and personal interaction between psycho-

therapist and patient. As a consequence, the psycho-

therapist can provide only minimal material which

ought to be thrown into the balance in deciding law-

suits.

Chief Justice Burger, in an article critical of psy-

chiatric opinions as an aid to determination of guilt

or innocence, made observations which are probably

applicable to psychiatry generally, and especially to

psychotherapy, insofar as the legal process is con-

cerned :

“At best psychiatry is now an infant among

the family of sciences. Just as the law can lay

no valid claim to being truly scientific, neither

perhaps can psychiatry and psychology; they

may be claiming too much in relation to what

they really understand about the human per-

sonality and human behavior. The adversary

process functions fairly well—and that is all

anyone can expect—using engineering experts

and others in the physical sciences to explain

and measure physical injuries and the causes

of such injuries. In most of these areas there

are concrete and objective factors to rely upon.

The psychiatrist, on the other hand, presently

has few such advantages, and the delicacy and

refinement of his evaluations are all too often

unsuited to the ‘black and white,’ ‘all or noth-

14

ing’ approaches of strongly partisan adver-

saries in a courtroom.” 28 Fed.Prob. No. 2, p. 3

at p. 7 (1964).

In short, psychotherapy is as much a subjective

art as an objective science. The raw material of psy-

chotherapy consists of potentially the most embar-

rassing and sensitive feelings and thoughts of the

patient. There are numerous schools of psychotherapy,

each with its own set of interpretations. (See, e.g.,

Harper, Psychoanalysis and Psychotherapy: 36 Sys-

tems (1959). One wonders if the therapeutic analysis,

which can be of great subjective value to the patient,

can ever be of probative, objective value to a court.

Amicus curiae suggest that this subjective realm

be left to the privacy of the psychotherapist-patient

relationship.

CONCLUSION

Lawyers, possessed of natural curiosity and the

desire to leave no stone unturned in the discharge of

an advocate’s responsibility, tend to regard psycho-

therapists as they would other witnesses who have

attended the patient. Judges and lawyers alike, re-

specting a traditional approach to the production

of evidence, are impatient with the psychotherapists

who refuse to behave like any other witnesses. The

psychotherapist is criticized for “playing God,” abro-

gating for himself the court’s own role, in deciding

what he will disclose. Psychotherapists are accused of

failing to understand that confidentiality of com-

15

munication is a right that belongs to the patient, and

not the therapist,—a right that can be waived by

the patient.

In fact, psychotherapists, particularly psychia-

trists, understand that the legal right which is pri-

marily at issue is not simply one of confidentiality of

communication, but rather a larger, more firmly

rooted right. It is the constitutional right of privacy.

In respecting that right, the psychotherapist adheres

to a responsibility incumbent upon any citizen, but

particularly binding upon a -professional whose most

traditional obligation is “first no harm’. No court

would permit direct exploration of the most private

thoughts of an individual who exercises his right of

access to the judicial system. To permit such explora-

tion through the interrogation of the psychotherapist

is an even greater invasion of the individual’s right

of privacy, because that exploration is made possible

by the coerced assistance of a professional able to

describe subconscious processes which the individual

himself could not and would not expose. The violence

of this assault upon the right of privacy, and the po-

tential consequences, to the patient and to society,

have left Dr. Caesar and others in his circumstances

without honorable choice. Dr. Caesar has not placed

himself outside the law. He recognizes—as did Judge

Hufstedler—that the fundamental right involved is

a constitutional right, reserved to the individual who

was his patient, which must be zealously protected.

16

Accordingly, we support this petition for certiorari,

not simply for the protection of psychotherapists, but

for the protection of the individual, and society

generally.

Dated: December 10, 1976.

Respectfully submitted,

HASSARD, BONNINGTON, ROGERS

& HUBER

By Davin E. WILLETT

Attorneys for Amicus Curiae

California Medical Associa-

tion in support of Petitioner

Dr. Caesar

17

STATE OF CALIFORNIA -

COUNTY OF SAN FRANCISCO\ ~~

AFFIDAVIT OF SERVICE BY MAIL

Joanna Katayanagi being sworn, says that she is a

citizen of the United States, over 18 years of age, a

resident of San Francisco County and not a party to

the within action.

That affiant’s business address is

44 Montgomery St., Suite 3500

San Francisco, California 94104

That affiant served 2 copies of the attached Amicus

Curiae Brief by placing said copies in an envelope

addressed to

David J. Costamagna, Esq.

4340 Redwood Highway

San Rafael, CA 94903

James D. Hammond, Esq.

Bacon, Stone, O’Brien & Hammond

One Post Street, Suite 3250

San Francisco, CA 94104

Douglas J. Maloney, Esq.

342 Civic Center

San Rafael, CA 94903

Raymond E. Bright, Esq.

463 Pacific Avenue

San Francisco. CA 94133

18

Irwin Leff, Esq.

Rosenthal & Leff, Inc.

100 Bush Street, Suite 428

San Francisco, CA 94104

George Frampton, Esq.

Rogovin, Stern & Huge

1730 Rhode Island Ave. N.W.

Washington, D.C.

Kurt W. Melchior, Esq.

Severson, Werson, Berke & Melchior

One Embarcadero Center, 25th Floor

San Francisco, California 94111

which envelope was then sealed and postage fully pre-

paid thereon, and thereafter was on December 13,

1976, deposited in the United States mail at San

Francisco, California. That there is delivery service

by the United States mail at the place so addressed,

or regular communication by United States mail be-

tween the place of mailing and the place so addressed.

I declare under penalty of perjury

that the foregoing is true and correct.

Executed on December 13, 1976, at

San Francisco, California.

Joanna Katayanagi