# Amicus Brief — Caesar v. Mountanos

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0999%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 954

## Text

—
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0999%3A5. Public record. Not legal advice.