As advocate of both health consumers and health providers, these organizations are upset by proposed Rule 504 of the New Federal Rules of Evidence labeled "Psychotherapist-Patient Privilege." In essence, this Rule does not recognize any general legal right of a patient to keep confidential his disclosures to his doctor, even though roughly 2% of the states do. Nor does it recognize any privilege if he mistakenly discloses confidential matter to an unlicensed psychologist, or if he seeks help with social and emotional problems with any licensed professional such as a psychiatric social worker, because he cannot afford a psychiatrist. Rather, the proposed Rule formulates a very limited kind of privilege: one that covers a doctor, licensed phychologist or psychiatrist only if and "while [he is] engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction." We believe this proposed Rule is both illegal and against the best interests of the public for the following reasons: I. THE DOCTOR-PATIENT PRIVILEGE IS A MATTER OF SUBSTANCE AND SO NOT WITHIN THE RULE-MAKING AUTHORITY OF THE DRAFTING COMMITTEE It has been our belief that federal rules are to govern practice and procedure in the federal courts, and not to abrogate or curtail substantive rights. 28 USC § 2072. (See dissent of Douglas J. accompanying submission of the Rules to Congress.) Although prior witnesses before this Committee have addressed in greater detail the legal and constitutional restrictions on the subject matter of federal rules, which are not subjected to the rigors of the traditional legislative process. we wish only to underline here the conviction of our members that the confidentiality of doctor-patient relationship (or any privilege between a patient and a licensed health professional authorized to treat psychological or social problems) is a critical substantive right of the patient in the realistic everyday meaning of the word, "right". That is, it is critical to the relationship of doctor or therapist and patient which must be one of trust and confidence, and the presence or absence of confidentiality may and often does color that relationship and the prospects for correct diagnosis and treatment. 66 There is increasing concern in modern life with preserving a person's right to privacy in his most intimate relationships; a zone of privacy, if you will, which makes life tolerable. Professor Charles Black, Jr., of the Yale Law School, speaking at the 2d Circuit Judicial Conference on the Rules. 48 FRD at 51, commented. ". . . this narrowing constriction of these Rules of Privilege as to the Physician Patient Privilege . . . represents a regression from the development of privacy with respect to the conduct of life that we have seen developed in the Griswold case. . . . It is most unfortunate, it seems to me, that when lawyers think of the problem of privacy they consider the necessity of privacy in the Lawyer-Client relationship but do not seem to consider this other relation. It seems to me, and I put forward the thesis, that it is more important to the quality of life by far that the privacy of the marital relationship and perhaps even that of the physician-patient relations be protected than the Lawyer-Client relationship be protected." Or, as Professor Louisell put it so well: "... there are things more important to human liberty than accurate adjudication. One of them is the right to be left unmolested in certain human relations." 31 Tulane L. Rev. 110. We believe that the Supreme Court's recent decisions on abortion emphatically support the substantiveness of the right to privacy implied in the doctor-patient relationship. (Roe v. Wade, US Sup. Ct. 70-18; Doe r. Bolten, US Sup Ct. 70-40). Those cases stand for the proposition that the state must have a "compelling claim" of state interest before it can intrude upon that relationship. In his majority opinion Justice Blackmun spoke of: "... (t) he obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concerns of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, so called 'error' and needs. The good physician will have a sympathy and an understanding for the preg nant patient that probably is not exceeded by those who participate in other areas of professional counselling." 1 1 Justice Douglas concurring added: "The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relation." Legal scholars and even participants in this rule-making process appear to agree that the rule-makers should not have attempted to alter basic testimonial privileges such as these. Professor Green, who conducted the original feasibility study on the Rules of Evidence, admitted the special and controversial character of privilege rules on testimonial privilege as far as federal rules were concerned. Green, Drafting Uniform Rules of Evidence, 52 Cornell Law Review 177 (1967) at 208. Judge Weinstein, a member of the Advisory Committee for the Rules, is on record as favoring federal recognition of state-created testimonial privileges between doctor and patient. "To take the physician-patient privilege as an example, if the state is prevented from substantially guaranteeing such inviolability the urge to communicate may be adversely affected by the possibility of revelation in the litigation. Patients may hold back symptoms for fear that a federal question case involving them may ultimately be brought in a federal court." Federal Evidence Rules, 69 Col. L. J. 353 (1969) at 371. Another Advisory Committee member, David Berger, also favored a general doctor-patient privilege. At a conference on the draft rules in the 2d Circuit (48 FDR 46-47) he said: "We have limited the application of privilege to the communications by a patient to a psychiatrist. I think the Bar ought to give serious consideration to whether or not this is sound. "The question in my mind is: is there not an equal need to speak freely to a doctor of medicine, a non-psychotherapist, as there is in the case of psychotherapist? It seems to me that in order to be properly diagnosed and correctly treated that the patient has to be free to tell the doctor whatever he has in mind pertaining to what caused the particular harm." Law professors agree. For instance, Professor Wright at the University of Texas Law School, one of the foremost authorities on federal procedure in the country and a member of the Standing Committee which passes on all the Rules. writes: "to fail to recognize a state-created privilege in a suit on a state-created claim that is in federal court only because of the accident of diversity of citizenship seems to me quite indefensible." Wright, Procedural Reform: Its Limitations and Its Future, 1 Georgia, L.R. 563 (1957) at 569. Courts too have recognized the substantive nature of the doctor-patient privilege. In Mass. Mutual Life Ins. v. Brei, 311 F.2d 463, 466 (2d Cir. 1962) J. Waterman said: 'the patient/physician privilege is more than a rule and a procedure since it goes to relationships established and maintained outside the area of litigation and 'affects people's conduct at the stage of primary activity should therefore be classified as substantive or quasi-substantive.'” Yet a drafting committee divided among itself, legislated away a long-standing privilege between doctors and patients that 2/3 of our state legislatures have decided is a valuable right to bestow upon their citizens. Although the jurisdiction of these new rules would apply only in the federal court, half a privilege is not better than none. We cannot ask patients to make sophisticated prognostications about whether their confidences are likely to end up relevant in a state or federal court proceeding before they repose confidences in their doctors or other licensed professionals. To hold up the threat of possible disclosure in any forum dilutes the relationship from the beginning. It effectively undermines the substance of the privacy and confidentiality the state tried to confer upon its people. It robs the patients themselves of their right 2 See also Degnan, the Law of Federal Evidence Reform, 76 Harv. L.R. (1962). Professor David Louisell of the U. of Cal. at Berkeley Law School would also retain the state privileges in federal law ("Confidentiality Conformity and Confusion," 31 Tulane L. Rev. (1956) pointing out that these privileges have a long tradition not only in American but in European law. 3 It is significant that most of the opposition to the general physician privilege comes from some segments of the legal profession which assiduously guard their attorney client privilege from all incursions. It should be noted, however, that many legal groups commenting on the Rules do not support elimination of the general privilege, including the Bar Association of the City of New York, the New York State Bar Association, and the Bar Association of St. Louis. very probably a constitutional one-to establish a zone of privacy about themselves and their doctors. In such an unfortunate clash of policies between federal and state governments and between the federal government and its citizens, there must be a compelling federal interest in mandating disclosure of patient confidences if this Rule is to survive. Yet to our understanding there is no necessity for such a rule at all. except a vague policy in favor of uniformity in the federal courts and a policy— certainly not applied equally to other professions or to the government itself in these Rules-in favor of general disclosure of all relevant evidence in federal court proceedings. The balance in any such clash seems clearly to us to fall on the side of the states and their citizens. When states act to create a doctor-patient privilege or a privilege with other health professionals they are conferring the right to privacy about their citizens' most intimate matters. In a world where there is so little privacy left, and so much of our lives are recorded in computers and data banks, this guarantee of inviolability is not lightly to be scoffed at. It therefore offends the values of many of us to have this right dismissed as merely "procedural" or as a "housekeeping" rule of court. We do not believe that there should be any federal rule which cuts back on a doctor-patient or other professional privilege recognized by the states, where no overriding federal substantive interest is involved. II. THERE IS A GENUINE NEED FOR A PATIENT PRIVILEGE OF GREATER SCOPE There is certainly a majority if not nearly unanimous sentiment in the medical community that a broader patient privilege than the one recognized in these Rules is necessary to effective diagnosis and treatment. During the rule-making process, the American Medical Association wrote to the Advisory Committee endorsing a general doctor-patient privilege, objecting to its limitation to psychiatrists and psychologists, and asking for an opportunity to present its views. (Letter of June 1, 1970 to Chief Justice Berger from Ernest B. Howard, Executive Vice President, AMA.) This was in response to an earlier draft of the Rules which limited the privilege to those who devoted a substantial part of their time to psychiatry or psychology and disallowed it to other doctors no matter what kind of ailment they were treating in a particular case (March 1969 draft). After further consideration the present compromise privilege emerged, covering all doctors but only while engaged in the diagnosis of a mental or emotional illness. This new version was not, however, according to our information, recirculated back to the medical groups which had commented on the earlier formulation, before it was submitted to the Court. We do not know. either, of any empirical data on which the Committee might have based its decision not to confer a general privilege on doctor-patient relationships but rather to create an entirely new version of its own. The Advisory Committee's Notes tell us only briefly their rationale for cutting back on the privilege. Primarily they say it is because a series of exceptions have emerged to the privilege that have cumulatively eroded away its core in many states. These exceptions include disclosures made to perpetrate fraud. malpractice disputes, criminal cases, will or testamentary disputes, child abuse cases, commitment proceedings and any case where the patient puts his physical or mental condition in dispute. This rationale is not convincing for two reasons. First, many of these identical exceptions are recognized in Rule 504 itself to the limited privilege stated there and if their effect is to nullify the general privilege into total uselessness it should apply equally to enervate the new formu'ation as well. More basically, however, most of these exceptions relate to situations of alleged wrong-doing on the part of one of the parties and the exploitation of the doctor-patient relationship for that purpose. The privilege in most states still protects the greatest number of cases where both doctor and patient. when they enter into the relationship, are acting in good faith toward each other. The scope of exceptions in cases where the patient puts his condition in issue, and in commitment proceedings are a cause of continuing concern and controversy to courts. doctors and patients alike, but we do not think by any means they justify total annihilation of the privilege for doctors any more than they do for psychiatrists. The indisputable fact is that most patients entering the consulting room assume what they say is and should be confidential. What committee of lawyers 4 is to say in modern life that the physicians office does not often serve the same function as the clergyman's confessional or that the poor and unsophisticated person unable to recognize the nature of his problem will not unburden himself to a doctor more readily than he will consult a psychiatrist. Certainly Marcus Welby, M.D. could not operate under these Rules for very long. On the other hand, we know of no overwhelming showing that the privilege in its traditional form has been a significant obstacle to truth finding in the federal courts. If the federal rule-making process is to enter this arena at all, the balance clearly lies in favor of preserving the consulting room as a sanctuary-even if not an impenetrable one from the omniscience and omnascence of a technological society. From the patient point of view also, he needs to get help for his emotional and social problems where he can. Crisis intervention agencies, family counselling services-all provide needed service, especially in poor communities. Whether or not the patient's first contact with the personnel in these agencies-the contact in which he may be most likely to open up-is conducted under the supervision of a doctor or psychiatrist should not be the critical factor. Often such contacts are made at night or on weekends when their relatively high level professionals are not on duty. It also seems the height of ridiculousness that a patient who in good faith consults someone he thinks is a doctor or psychiatrist but who is not may still have a privilege, while those who make the same mistake about a psychologist are denied the privilege. If the purpose of the privilege is to encourage people in trouble to seek help these kinds of distinctions make little sense. In a nation as stress-ridden as we are where domestic violence accounts for the vast majority of our homicides, our public policy should be one of avidly encouraging people to seek help from whatever legitimate sources they can find-be they psychiatrists, doctors, psychologists, or licensed social workers and we should not penalize them if they are occasionally defrauded. III. THE COMPROMISE PRIVILEGE IN RULE 504 IS UNWORKABLE AND RAISES A VARIETY OF PROBLEMS OF INTERPRETATION AND APPLICATION As we have stated there is a total lacking of any clear justification for federal rules that conflict with and undercut state laws that recognize a doctor-patient privilege. And if one had to be formulated we would favor a general guarantee of confidentiality as an essential component of a citizen's right to privacy as to his most intimate relations with his medical advisors, whether his troubles are mental or physical. In the remaining pages, we can only briefly allude to the many inconsistencies and problems we see in the application of this proposed Rule. (a) It protects a patient only so long as the doctor is diagnosing or treating him for a mental or emotional illness. Why is it not just as valuable a public policy to encourage diagnosis and treatment of physical ills as well as mental ones. Who is to say that personal confidences sought and given in order to treat heart trouble or hypertension or migraine, to relieve the anxieties of pregnant women or new mothers, to help the agonies of terminal cancer pa tients should not be privileged while the narrative life stories of neurotics and psychotics should? And we all know that any thorough physical examination demands an intimate personal history that few patients want disclosed to the world. How can a doctor tell beforehand if an answer may be relevant 64 Slovenko-Pschotherapy Confidentiality and Privileged Communication (1966) at 37: Either through choice or necessity, a physician must serve as a counsellor. Other than the clergy, the physician is most often consulted regarding marital and sexual diffi culties, now more than ever, because patients tend to be less defensive and more open about these matters.' In a relationship with a physician, a patient assumes that his disclosures will not be passed on to others except for the specific purpose of lending necessary help, and then only with his consent. Confidentiality is especially expected of physicians, as the patient submits and bares himself to a physician in the professional relationship unlike in any other. People generally feel that anything can be said or shown to a doctor." (Id. at 3.) The Advisory Committee's Note to Rule 504 comments that "the doubts attendant upon the general physician's patient privilege are not present when the relationship is that of psychotherapist and patient." It cites, however, no source for this general conclusion and we have not found this distinction to be accepted in the medical community. The reason that psychotherapists and psychologists have sought an independent privilege for themselves has usually been on the practical ground that "lawyers have vigorously opposed the physician-patient privilege" and they would do better not to tie themselves to such opposi tion. Goldstein & Katz, The Psychotherapist-Patient Privilege, 36 Conn. Bar. L. 175 (1962). Slovenko, Psychotherapy, Confidentiality and Privileged Communication (1966) at 38. to diagnosis of either a mental or physical condition before the patient makes it. Medically he has to err on the side of over-inquiry. (b) Practically speaking, how is a general practitioner to self-police this distinction between diagnosing and treating medical and emotional ills. The emphasis in modern medicine is on treating the whole patient; this Rule fragments that effort. The family doctor dealing as he must with the whole spectrum of human ills and the universally recognized interaction between emotions and physical symptoms is being asked to somehow compartmentalize his diagnosis and treatment as aimed at the physicial disability or the underlying emotional cause. Does he say to himself: "Now I am treating his ulcer; so he has no privilege". "Now I am treating his emotional turmoil that has induced the ulcer so he does have a privilege." Not very realistic, is it? The Rule presupposes an entirely artificial delineation between the workings of the mind and body which modern medicine belies. (c) Since it is the patient who has the privilege, does the doctor have to announce to the patient when he considers that it exists? A person consults a doctor not generally knowing what is the cause of his pain or symptoms or whether it is physical or emotional. It is the doctor's business to find out. But often it is counter-therapeutic to announce to a patient that his illness is all in the mind or that he is asking questions to find out if it is a mental or emotional illness. [Doctors are not lawyers and they don't practice medicine the way we try cases.] It makes no sense to give a patient a privilege but only in situations which he cannot recognize or define for himself. The doctor who wishes to be candid with his patient will end up having to give him a type of Miranda warning about confidentiality. (d) The therapist privilege is extended to all disclosures made to anyone participating in the treatment plan under the therapist's direction, even members of the patient's family. Thus social workers, nurses, members of a lay encounter group or the patient's children can maintain confidentiality if they are a part of a treatment team for a "mental or emotional illness". And if the therapist ordered the patient to go to a regular doctor for physical reasons as part of the treatment plan, for instance for cosmetic surgery, his confidences to the doctor would be protected. Yet the same doctor who diagnoses or treats the same patient in the same way on his own initiative cannot guarantee a privilege. There is something in such a Rule that just does not commend itself to common sense. (e) Nondoctor or psychologist professionals or laymen can confer a privilege only if they are working under the direction of a doctor or psychologist. What does "direction" mean in a clinic with a psychiatrist and 30-40 social workers. If, as is usual, these social workers or nurses make the initial contact before the patient ever sees the doctor, are they acting under his direction? Must he be on the premises in active control of the case or is his general administrative direction of the clinic enough to protect the patient? (f) Drug addiction is included in the mental or emotional illnesses which merit the privilege. But drug addiction is not even a medical term. Drug dependencies vary in physical and psychic symptoms and severity. Which are covered here? The hard drugs, the soft drugs, alcohol? If alcoholism is included imagine the dilemma of a doctor treating an alcoholic for liver damage. Does the privilege apply or not? IV. THE EXCEPTION TO THE LIMITED PRIVILEGE IN RULE 504 ALSO There are two exceptions to the therapist-patient privilege in Rule 504 which give us cause for concern. The first is in 504 (d) (1) which allows waiver of the privilege in commitment proceedings when the therapist decides that the patient needs hospitalization. We recognize the exception for commitment proceedings is one often found in state laws and one which presents a complex policy dilemma between the need for confidentiality in the therapist-patient relationship and society's need for protection from the dangerously mentally ill. Certainly the broadness of the exception would seem to discourage persons from consulting therapists in the first place for fear that they will later be committed against their will. The therapist can apparently be required to testify even if his determination in favor of hospitalization is made in the course |