The Psychotherapist Privilege Applies to Nonverbal Communications

The U.S. Supreme Court first recognized the “psychotherapist privilege” in Jaffee v. Redmond, 518 U.S. 1 (1996). The privilege—which applies in both civil and criminal cases—protects communications between a patient and his or her mental health provider made in the course of seeking or receiving diagnosis or treatment. The privilege is meant to promote effective psychotherapy by fostering an atmosphere of confidence and trust in which a patient is willing to make a full and frank disclosure of facts, emotions, memories, and fears. Although the existence of the privilege is well-settled, little case law exists addressing the scope of the “communications” that are covered by the privilege—and, in particular, whether (and, if so, to what extent) the privilege protects nonverbal communications.

In United States v. Ray, 2022 WL 374367 (S.D.N.Y. Feb. 8, 2022), U.S. District Court Judge Lewis J. Liman for the Southern District of New York recently addressed the application of the privilege to nonverbal communications. Although Ray is a criminal case, its holdings apply equally to civil actions. The defendant in Ray sought the psychotherapy records of his alleged victims, including records that reflected the observational notes of the victims’ therapists. Judge Liman concluded that to the extent the observational notes included information that the victims had conveyed to the therapists—whether in words or through nonverbal acts—the notes fell within the scope of the privilege and properly were redacted. Judge Liman held, however, that to the extent the information in the notes did not reflect actual communications (such as where the notes reflected a therapist’s observation of a victim’s physical appearance), the information was not covered by the privilege. Judge Liman also held that the privilege did not extend to information that the victims may have communicated to medical professionals before they sought or received treatment from mental-health providers, such as information that the victims communicated to intake staff at a general hospital or emergency room.

‘U.S. v. Ray’