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Now that sexual harassment suits have become common, psychiatrists are often faced with demands that they disclose all of part of the psychiatric records of a person claiming to be a harassment victim. In response to this troubling development, APA's Board of Trustees recently endorsed an official position statement designed to guide psychiatrists through the turbulent ethical waters surrounding the decision about what, if anything, is appropriate for a psychiatrist to disclose to the court.
The statement should also provide critical guidance for judges who must decide whether and to what extent a plaintiff's psychiatric records should be revealed to a defendant's attorney, said Margaret Jensvold, M.D., chair of the APA Committee on Abuse and Misuse of Psychiatry in the U.S.
The position statement was developed by that committee and the Council on Psychiatry and Law, which is chaired by Renee Binder, M.D.
The statement, approved by the Trustees at their July 26-27 meeting in San Diego, points out that disclosing psychiatric information or conducting psychiatric exams in civil litigation "may be appropriate, for example, in cases in which a plaintiff claims to have suffered a psychiatric illness as a result of the defendant's illegal conduct."
A significant problem arises, however, when a plaintiff who charges that she or he is the victim of sexual harassment is forced by the court to reveal the contents of psychiatric records or undergo psychiatric examinations even though that individual neither claims to be suffering from a mental disorder triggered by the harassment nor plans to use the testimony of a psychiatrist or mental health professional to support the charges.
Jensvold told Psychiatric News that there is a growing trend in the U.S. legal system for defendants' attorneys to intrude into irrelevant aspects of the private lives of litigants who bring sexual harassment charges. Unfortunately, she pointed out, this trend increasingly involves violations of the confidentiality of psychiatric records. Such tactics "are unfair and just a way to further harass a litigant," she said.
The new position statement on sexual harassment and psychiatric records puts APA on record as maintaining "that mandatory disclosure of psychiatric records and/or compulsory psychiatric examinations under these circumstances constitute an abuse of psychiatry, because these practices impose an unreasonable burden on the privacy of plaintiffs in sexual harassment litigation and inevitably deter people who are unwilling to pay this price from seeking to vindicate their legal rights."
It concludes by alerting psychiatrists who testify or conduct examinations of sexual harassment plaintiffs when mental condition is at issue that they must be cautious to "adhere to the ethical standards of their profession."
The APA position statement could have broad applications that go beyond sexual harassment cases. Its recommendations, Jensvold noted, will be relevant in other types of discrimination litigation and in cases involving retaliation against whistle-blowers who reveal corporate misdeeds.
The statement's importance in all of these types of lawsuits, she suggested, is that it should alert judges to "the need to examine the unique circumstances of every such case" before they instinctively go along with the trend to open up records whose confidentiality a plaintiff thought was inviolable.