When it was issued in 1996, the U.S. Supreme Court’s ruling in Jaffee v. Redmond establishing an absolute psychotherapist-patient privilege in federal courts was hailed as a landmark decision. Indeed, the finding was a monumental event for psychiatry because it demonstrated that the highest court recognized the relationship was as worthy of special protection as that of attorney and client or husband and wife.

But the decision may not be as broad as many psychiatrists have assumed. That’s because, unlike the attorney-client and spousal privileges that it follows, the psychotherapist-patient privilege has not been tested by hundreds of years of case law.

"It is like a newborn baby," said Paul W. Mosher, M.D., an Albany, N.Y., psychiatrist who has written extensively on the case. "It is a welcome addition, but no one is sure how it will grow up."

The decision, which said that a police officer did not have to reveal the contents of her counseling sessions to the family of the man she had fatally shot, established for the first time the Supreme Court’s view that disclosure of confidential information would destroy the therapeutic value of the psychotherapist-patient relationship. But the court also made it clear that the full contours of its decision were yet to be determined. At its outer edges, there may be subtle, new interpretations that could impact the practice of psychotherapy.

That message is likely to surprise many professionals who view the landmark decision as a sweeping protection of the relationship between patients and psychiatrists.

The Supreme Court acknowledged in its ruling, for instance, that "there are situations in which the privilege must give way; for example, if a serious threat of harm to the patient or to others can be averted only by means of disclosure by the therapist." And since the decision, lower courts have ruled that the privilege does not apply when the therapist is a participant—unwitting or not—in criminal activity, just as the courts have offered no protection to attorneys who conspire with their clients to commit crimes.

A concern for therapists and their patients is that the courts could go well beyond that if faced with challenges as to who is covered by the privilege, experts say. As written, the ruling applies to patients and psychotherapists, but it is not clear whether it can be invoked on behalf of patients of psychiatrists and others who aren’t performing traditional forms of psychotherapy.

As Mosher explained, "The evolution of support for the privilege is intertwined with a confidential psychoanalytic-confessional model of psychotherapy based on ‘free-association.’ Over the decades that the privilege has gained acceptance, the field of psychotherapy has changed. Many therapists now practice forms of ‘psychotherapy’ that arguably do not fit within the same criteria upon which the privilege is based and might be better called ‘supportive therapy’ or ‘mental health counseling,’" Mosher said.

The distinction is important because federal courts do not recognize a privilege for the medical profession in general. And more and more, psychiatric practices focus on remedies addressing biochemical irregularities rather than unconscious processes.

"Psychiatrists are now often called ‘hydraulic doctors’—they raise and lower dosages; they are less and less ‘the listening and talking doctor,’" said Ralph Slovenko, a professor of law and psychiatry at Wayne State University. "The ‘P’ word is no longer psychoanalysis, but Prozac. This change in the practice of psychiatry very much undercuts the argument distinguishing psychiatry from medicine in regard to the [psychotherapy] privilege."

Some might argue that the newer forms of mental health counseling, particularly those influenced by behaviorist schools of psychology, such as "behavior therapy," which disavow childhood experience and uncovering lost memories, are not covered by the Jaffee decision. Those who seek to gain access to medical records could say that "although these therapies may deal with highly personal and potentially embarrassing material from a patient’s life, it is difficult to support the instrumental justification for a privilege in these treatments in the same sense that it is difficult to support a broad ‘medical privilege’ for health care in general, which often deals with the same kind of sensitive matters," Mosher said.

Consider for instance, so-called "psychosocial treatment" or "personal therapy," designed to assist seriously ill patients without probing into their unconscious. Since such forms of therapy are not described by its proponents or other professionals as "psychotherapy," would they qualify under the privilege? Thus far, courts have not taken up the issue. Nor have they defined which forms of therapy fit within the privilege.

Just as newer therapeutic techniques raise questions about the decision’s scope, so too do financial practices including utilization review.

In managed care programs, a great deal of sensitive information is relayed between the physician and administrators who handle claims and approve care, raising the question of whether a patient has waived his or her right to privacy by participating in the program.

"The fact that the managed care counseling relationship is not, as a regular matter, conducted confidentially creates a powerful argument that such a relationship cannot be within the privilege," Mosher suggested. "Complicating this question is the patient’s knowledge of the extent of disclosure at the time the therapy takes place," he added.

Aggressive lawyers may also be able to subpoena psychiatric records by arguing that insurance waivers that allow third parties to examine medical records constitute a voluntary surrender by the patient of the patient-psychiatrist privilege—at least until this issue is resolved in the federal courts. In some states, the state privilege is protected by law even when a disclosure is made to an insurer.

Under the Department of Health and Human Services’ pending privacy regulations, it would be illegal for an insurer to sell policies that cover psychotherapy, but require the patient to agree to the disclosure of such notes. It would also be illegal for an insurer to make a claim payment contingent on the disclosure of psychotherapy notes. "If this rule goes into effect, it will pretty much spell the end of intrusive case management of psychotherapy," Mosher said.

Under the HHS proposal, medical information in general can be disclosed to insurance companies and other providers without a patient’s written consent or authorization. The special protection for psychotherapy patients is due in no small part to the Jaffee ruling. HHS acknowledged as much in its regulations, which experts say is an indication of how powerful the Jaffee decision is, and will be, when it comes to future legal challenges.

The U.S. Surgeon General’s endorsement of the decision in his landmark report on mental health also augurs well. That report specifically recommends that state laws that permit disclosure by psychotherapists to insurers be changed, since those laws were written before managed care was ever imagined.

Only time will tell if the courts will endorse the principle in all its nuances with the same vigor as the Supreme Court did in Jaffee.