October 20, 2000

legal news

Tarasoff Warning Does Not Waive Psychotherapy Privilege, Judge Rules

Neither a psychiatrist issuing a Tarasoff warning nor a patient telling his friends he's in treatment constitutes a waiver of a patient's psychiatrist-patient privilege, a judge rules.

A New York City judge has added a new brick to the legal wall shielding the confidential nature of communications between psychiatrists and their patients.

In a September 12 ruling, Manhattan Criminal Court Judge Leslie Crocker Snyder emphasized that the New York statute governing psychotherapist-patient privilege allows a court to overrule the privilege only in rare circumstances. These circumstances do not necessarily include cases in which a former psychiatric patient is on trial for murder.

The confidentiality privileges at stake in this case, People of the State of New York v. Robert Bierenbaum, go back 17 years and involve three psychiatrists who either treated Bierenbaum at that time or consulted on his treatment.

During his sessions with Michael Stone, M.D., Stanley Bone, M.D., and Carl Kleban, M.D., Bierenbaum, who is a plastic surgeon, discussed his serious marital problems. Stone was alarmed by threats of violence the patient made against his wife and, as a result of his belief that the threats were serious, exercised his "Tarasoff duty" by alerting Bierenbaum’s wife, an action to which Bierenbaum assented. Two years later, in July 1985, Bierenbaum’s wife disappeared, and her body has never been found.

Though police always suspected Bierenbaum, it was not until last year that state prosecutors decided to file charges against him for second-degree murder, believing they had finally had sufficient evidence to show that he was responsible for his wife’s disappearance and death. They believe he killed her in their New York apartment and then took her body to New Jersey, where he rented a private plane from which he tossed her body into the Atlantic Ocean. Bierenbaum, now age 45, maintains that his wife left the apartment after an argument and never returned. He reported her missing the next day.

The prosecutors used Stone’s 1983 Tarasoff-like warning to argue that Bierenbaum and Stone at that point waived the confidentiality privilege. As a result, the prosecutors said, Stone and the other two psychiatrists were obligated to comply with the subpoena to turn over all of Bierenbaum’s medical records and other statements he made to them, which could then be admitted into evidence during his murder trial. They claimed that the issuance of the warning to Bierenbaum’s wife with the patient’s consent abrogated the protections afforded to all of Bierenbaum’s communications with the three psychiatrists.

In addition, they bolstered their argument for allowing the content of his therapy to become part of the record by suggesting that since Bierenbaum had told third parties that he was in therapy because of marital troubles, that action also constituted a voluntary waiver of his psychotherapy privilege.

In an amicus brief submitted in support of maintaining the psychotherapy privilege, the New York State Psychiatric Association and the American Psychoanalytic Association argued that on the Tarasoff-warning issue, the privilege was not negated when Stone warned the patient’s wife of threats against her. The privilege is not the psychiatrists to waive, they maintained—the decision rests entirely with the patient, and there is no indication that he chose to surrender it.

On the dangerousness issue, their brief emphasizes as well that "the danger that justified Dr. Stone’s limited 1983 disclosure of psychiatrist-patient communications" no longer exists and forcing such disclosure "can only serve to discourage patients from seeking assistance from psychiatrists and communicating their problems."

The other contention on which the prosecution based its case was that Bierenbaum waived his right to confidentiality when he told third parties that he was seeking therapy for his marital problems. The two psychiatric organizations emphasized the specious nature of this legal argument, saying that it was supported by "neither reason nor precedent." The fact that an individual is receiving psychiatric care is not a privileged bit of information, "so its disclosure to third parties cannot waive anything. And the disclosure to third parties of the general reason for the physician visits—marital problems—cannot possibly waive the privilege as to the detailed communications during those visits," the brief states.

On September 12, during pretrial motions, Judge Snyder ruled that the points in support of maintaining the defendant’s psychiatrist-patient privilege made by the NYSPA and American Psychoanalytic Association constituted a stronger legal argument than did prosecution’s claims about its having been abrogated. She likened the strength of this privilege to the sacrosanct one between a lawyer and client, though she indicated that she was troubled by having to rule this way in the case of a defendant whom multiple psychiatrists thought was potentially violent.

At press time the judge had not issued the written explanation of her ruling, which is expected to clarify her decision in detail.

The NYSPA/ApsA brief is posted on the Web at <apsa.org/brief0907.htm>.

[People of the State of New York against Robert Bierenbaum, Indictment #8295/99]