John Paul Stevens, the recently deceased former justice of the U. S. Supreme Court, should be remembered by clinicians for his role in Jaffee v. Redmond, the only case involving clinical social work ever heard by the highest court. In writing the majority (7-2) opinion in the 1996 case, Stevens favored the profession and directly cited the friend-of-the court brief submitted by the American Board of Examiners in Clinical Social Work (ABE) and two other organizations. The final co-editors of that brief were ABE staffer Robert Booth and ABE counsel Peter Brody of Ropes & Gray.

Stevens wrote that “the mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” No such statement had ever been made in an opinion of the Supreme Court. The opinion guaranteed that, in federal court, the principle of confidentiality trumps the evidentiary value of case notes. The effect is to assure consumers of mental healthcare that, if a court action is brought, their communications with their therapist must remain confidential and not citable or discoverable as evidence. Lest there be any confusion about who had the privilege, Stevens asserted that clinical social workers provide “a significant amount of mental health treatment” in the United States and declared that “the reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker…”

Until the Supreme Court’s ruling in Jaffee v. Redmond, many federal judges had engaged in “balance testing”—applying their own assessment as to whether therapeutic communications might be introduced as evidence. The majority opinion effectively ended this practice in federal courts, and, by creating the precedent, made it very difficult to argue in any court against the primacy of confidentiality. By upholding the primacy of confidentiality, the Supreme Court assured clients that the privacy of their disclosures is protected—a level of assurance and trust that is at the heart of successful therapy.

Were you aware of Jaffee v. Redmond and its impact on protecting privacy of communications? If not, will you use it to re-assure clients? What might have been the result (two justices, Scalia and Rehnquist, dissented from the majority opinion) if the ruling in Jaffee v. Redmond had gone the other way?

For more information on Jaffee v. Redmond, logged in ACSWA Members may visit the Member Resources page. Alternatively, relevant PDFs can be found here: Jaffee v. Redmond 1996 News Release; Syllabus; Brief; Opinion; Dissent; Peter Brody, JD article.


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