August 14, 1970

The Honorable David L. Bazelon
Chief Budge

United States Court of Appeals
Washington, D.C. 20001

Dear Dave,

Thank you for referring this material on the psychiatrist-
patient privilege to ny attention. It may be characteristic that
lawyers will be immensely more tender about the legal than the
medical privilege and visa versa. And the lawyers write the law:
This is to say that I have and must expose my bias in favor of a
more comprehensive medical privilege but I will try not to press

that further at the moment.

The contending social interests efe fairly obvious: the bringing
in of all available evidence, by compulsion if necessary, for judicial
dnewt@etios on the one side; on the other that citizens with emotional
problems be given every possible encouragement to obtaining competent
and confidential counseling about them. The threat of divulging
confidential information will deter a very large number of people
compared to the number of instances where such information is of
crucial importance in a judicial proceeding and I think the place
where the balance lies should then be fairly obvious, namely, in the
most liberal application of the privilege. Rule 5-04(b) is a defining
restriction that, it seems to me, does all the necessary work of de-
limiting the area that should be subject to the privilege and I believe
that there should then be a much more liberal definition of the group
of counselors communications to which should be protected. We do after
all want to encourage people to get counsel in dealing, for example,
with marital problems if only because a certain number of violent crimes
might be prevented by the readier availability of such advice. An
attempt to give the privilege explicitly to marital counselors was
defeated in the California Legislature last year. It seems to me
proposterous that matter communicated to a gynecologist would not have
the game privilege as to a psychiatrist but my suggestions on Rule
5-04 as here and attached do not go quite 80 far.

Part three has an abmbiguity that should be cleared up namely that
a communication is confidential if not intended by the communicant.
Perhaps the reading might be ‘a communication is confidential unless the
patient believes that it is intended to be disclosed etc.’ Medical and

over

ee

 
Bazelon — -~2- August 14, 1970

psychiatric examinations are sometimes given under ambiguous
circumstances and the benifit of the doubt should lie in favor
of the privilege.

In another milieu the religious privilege served the same
function that we should verify as having been inherited by another
group of counselors. The belief of the patient that he is seeking
and obtaining confidential advice on his mental and emotional problems
from a licensed professional, rather than the guilé-membership and
preoccupation of that professional in something called " psycho-
therapy’ ought to be controlling.

Sincerely yours,

Joshua Lederberg
Professor of Genetics

JL/rr