Amicus Curiae Brief — Lifschutz v. Superior Court of California

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- SUPREME COURT, U.S

auc: 1 > 1963 AUG 12

‘In the Supreme Court

of the United States .

a =

October Term, QB 1727

JOSEPH E. LIFSCHUTZ, M. D.,

. Petitioner,

VS.

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, IN AND FOR THE COUN-

TY OF SAN MATEO,

—~—

Respondent,

J

MOTION OF

NATIONAL ASSOCIATION FOR MENTAL HEALTH

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE ©

AND BRIEF AMICUS CURIAE

The National Association for Mental Health (hereinafter de- .

noted as NAMH) moves for leave to file a brief amicus curiae

in this case in support of the petitioner’s request for a writ

of certiorari.

Counsel for petitioner has consented to the filing of such

brief, but gcounsel for John Arabian, George J. Arabian and

Isabelle H. Arabian, the real parties in interest, has refused

his consent. -

a ‘ED: LIBRARY MOTION FILED

arti Bie Ri 8 KA ASS CRE ABO 8 NG in PRES pte Va! Ee el

In the Supreme Court

| of the

United States

oe

October Term, 1968

om

No. 1395 _

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JOSEPH E. LIFSCHUTZ, M. D.., eo

Petitioner,

vs. - eer

- SUPERIOR COURT OF THE STATE OF >

CALIFORNIA, IN: AND FOR THE COUN-

TY OF SAN MATEO,

Respondent,

5

MOTION OF

NATIONAL ASSOCIATION FOR MENTAL HEALTH

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE /

AND BRIEF AMICUS CURIAE

: WILLIAM C. SCHAAB

First National Bank Bldg. West

Albuquerque, New Mexico 87101 ;

Attorney for the National

Association for Mental Health

HENRY WEIHOFEN —

of Counsel

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—

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INTEREST OF THE ASSOCIATION -.

NAMH is a nonprofit corporation, representing citizens

throughout the United States working to. i improve care and

treatment of the mentally ill and to-promote mental health.

The issue in this case, whether a psychotherapist has a con-

stitutiongl privilege fo refuse to divulge confidences of his

patients, is of concern not only for therapists, such as the

petitioner, but equally so for patients and therefore also for

all those interested in the welfare of the mentally ill, including

the members of NAMH, its state divisions and its local chapters..

«

REASON FOR FILING A BRIEF amicus CURIAE

The petitioner’ s contention is that-for a state tq compel him

to disclose confidences of a patient-impairs his ability to prac-

tice his profession and thus violates his rights under the United

States Constitution. But any impairment of the therapist’s

ability to treat patients impairs the interests of the patients at

least as much as those of the therapist. Indeed, it seems correct

~~ to say that the reason why the petitioner and others in his

profession should be held to have a constitutional right to

practice their profession without unreasonable restraints is

that such practice serves a vital peblic interest by ministering

to the needs of mentally ill patients. The NAMH asks leave to

supplement the petitioner’s arguments by emphasizing the

interest in the issue presented, and the constitutional rights,

of patients and potential patients — which in effect means

every person in the United States.

AS

AST ATE MAY NOT CONSTITUTIONALLY COMPEL

BREACH OF CONFIDENTIALITY OF COMMUNICATIONS

BETWEEN A PSYCHIATRIC PATIENT AND HIS THERAPIST

The abies of patients are properly before the court. In this

case, as in Griswold v. Connecticut, 381 U. S. 479 (1965), °

f

\ :

the petitioner has standing to raise the constitutional rights of

_ the persons with whom he has a professional relationship.

That what ‘a physician is told by his patient in confidence is

to be kept confidential has been an accepted precept of medical

ethics at least since the time of Hippocrates. The assurance of

confidentiality is particularly important in the treatment of

mental illness. The psychiatrist must insist on. very personal

data, and must explore the relationship of the patient’s acts

to his basic drives, which gan only be adequately revealed by

his deepest and most secret thoughts and feelings. This i is ture

not only in psychoanalysis but in all psychotherapy.

A person seeking such therapy may confess to marital

infidelities, perverse sexual behavior or other conduct which .

might incriminate him in criminal or other litigation. He would

be hesitant to speak frankly to his therapist about such matters

if he knew the 4atter could-later be compelled to reveal them

in open court and he might feel-constrained from exercising

his fight to consult a physician if he knew that to do so

might entail such revelation.

_ “What is more, the patient’s saatienents may reveal to his

therapist much more than the patient intends or realizes. The

psychiatric patient confides more utterly than anyone else in

the world. He exposes to the therapist not only what his words

directly eXpress; he lays bare his entire self, his dreams, his

fantasies, his sins, and his shame. Most patients who undergo

psychotherapy know that this is what -is expected of them,

and that they cannot get help except on that condition. It is

_ extremely hard for them to bring themselves to the point

where they are} willing to expose the dark recesses of their

mind to the psychiatrist . ... . It would be too much to expect

them to do so if they knew that all they say —-and.all that the

psychiatrist learns from what they say — may be revéaled to the

whole world from a .witness stand.” Guttmacher and Weihofen,

Psychiatry and the Law 272 (1952).

For a state to compel such revelation therefore seriously

obstructs access of all mentally ill persons to therapy, and thus

interferes with their constitutional right to consult a physician

and to seek treatment. This interference constitutes a depri-

vation of due process of law, in that it invades the freedom of

speech and the rights of privacy guaranteed by the First,

at

Fourth and Fifth Amendments, and applicable against the

states through the Fourteenth. .:

“A state may not,” as this Court has said, “consistently With

the First Amendment, contract the spectrum of available

knowledge.” Griswold v. Connecticut, 381 U. S. 479, 482.

Freedom of speech includes the right to receive information as

well as to impart it — “indeed the freedom of the entire uni-

versity community.” Id. The right’ to receive professional

-medical advice and therapy is surely as essential a part of this

.freedom as the right to study a foreign language, Meyer v.

Nebraska, 313 U. S: 236, or the right to educate ‘oneself or

‘one’s children as one chooses. Pierce v. Society of Sisters,

268 U. S. 510. - nits Seg ‘

The Fifth Amendment in its self-incrimination clause “en-

ables a citizen to create a zone of privacy which government. _

may not force him to surrender to his detriment.” And the

Fifth together with-the Fourth Amendment protects against

all governmental invasions “ofthe sanctity of a man’s. home

and the privacies of life.” Griswold v. Connecticut; supra.

Whatever may be the proper limits of the concept of a “right

_ of privacy,”

bility of confidences about abnormal and anti-social behavior

and bizarre and unacceptable thoughts and feelings that

people are unwilling to ex

psychotherapeutic relationship:

THE CALIFORNIA STATUTES RESTRICTING |

RECOGNITION OF THE PRIVILEGE ARE OVERBROAD

California recognizes a legal privilege to prevent the revealing

in court. of information communicated by patients to their —

therapists in confidence. The NAMH does not contend that

this privilege may not be reasonably limited. Indeed, it is rec-

ognized that authorities on the law of evidence have been

critical of the privilege and some have urged its abolition. But

the objections have been leveled at abuses irf non-psychiatric

cases — personal injury suits, for example. A person who has

been Struck by an automobile is not likely to have any legiti-

; : :

on a Te . a

it must include, if it means anything, the inviola-

-except in the privacy of the -

mate interest in keeping the extent of his injuries secret. On the

contrary, he is ‘usually eager to round up 4s many witnesses

as he can to testify to what happened and to the extent of his .

injuries. Wf he objects to the testimony of a doctorsvho treated

him, it is not because he wants to keép his injuries Secret, but

‘almost certainly because he fears the doctor will testify that

he was not appreciably injured at all.

But mental injury or ill health is still a matter of which many |

people are ashamed and which they want to hide: Although

there may be no reason to suppose that the automobile accident

plaintiff intends his consultation with a doctor to be confiden-

tial, there is every reason to assume that the psychiatric patient

_ so intends. :

California may properly restrict the privilege so as to curb

abuses shown to exist. But the California statutes undertake

to restrict the privilege in a relationship where it is essential to

treatment, where. its restriction impairs constitutional rights

and where no abuses have been shown.

In particular, the provision of the California statute that the

privilege is waived if a person, at any time after treatment, puts

his medical and emotional gondition in issue in a law suit, Cal.

Evidence Code Secs. 996(a), 1016(a),° operates to constrain

persons from seeking psychiatric care and treatment. As said,

a person seeking such care and treatment must accept the

requirement that he be completely frank in his “free associa-

tion” verbal production. He’ is not likely to feel so free unless

the therapist can assure him of absolute confidentiality,

especially because the patient cannot know at the outset what

fears and fantasies he may reveal as treatment progresses,

perhaps because some of these are so buried in his unconscious

' that he does not himself know that they exist. And since, as

already said, he does not know what his verbal productions

may reveal to the’ therapist over and beyond what his words

express, it is unrealistic to say that if, perhaps years later, he

puts his mental condition in“issue in some case at law, he

thereby waives his privilege and gonsents to the therapist’s

disclosing all that he had said and all that. his words revealed

about him. All patients as a class, and all persons who may

contemplate consulting a therapist for mental illness or emo-

tional disturbance, will to some extent be intimidated and

deterred by the spectacle of therapists being haled into court

and compelled in a public trail to reveal confidences of patients,

‘and by ‘the realization that anything they tell-a therapist may

similarly be exposed if at any time in the future they do-any

act, whether intentionally, inadvertently,-or by neurotic im-

pulse, that the law deems to constitute a waiver.

&

CONCLUSION Z

The California statutory, provision that puttitig one’s ‘mental

- or emotional. condition at issue in a law: suit automatically -

constitutes a waiver of the privileged status of conimunications

confided to one’s psychotherapist, no matter how long in the

past, operates to intimidate and deter persons from exercising °

their constitutional right to consult a therapist and to obtain

' care and treatment for mental illness. Whether a state may

thus impair this vital personal right has never been decided -by

this Court. NAMH ‘therefore respectfully urges that the Writ

of Certiorari issue. 2,

®

b)

WILLIAM C. SCHAAB

' First National Bank Bldg. West

Albuquerque, New Mexico 87101

' Attorney for the National

Association for Mental Health

HENRY WEIHOF EN

- of Counsel

Bid cla

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