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Slovenko, R. (1975). On Testimonial Privilege. Contemp. Psychoanal., 11:188-204.

(1975). Contemporary Psychoanalysis, 11:188-204

On Testimonial Privilege

Ralph Slovenko

PSYCHIATRISTS AND OTHERS have been lead to believe that a shield statute would protect communications made by their patients or clients against demand for disclosure by agencies and tribunals of the state. The holes that are carved in the shield, however, make it quite apparent now that the proponents of privilege were false prophets. The hope in privilege was misguided and ought to be rechanneled in another direction.

The futility of the privilege concept may seem to present a calamity, considering the laudatory arguments advanced on its behalf. The claim to a psychotherapy privilege is based on the idea that a person will not seek therapy or that the therapeutic effort will be frustrated if not accorded privacy. The privilege is urged so as to protect Freud's great discovery of a unique human situation where a person, through a relationship with another, can explore the meaning and experiential realities of his life without intrusion. Freud (1959) said that "The whole undertaking becomes lost labour if a single concession is made to secrecy."

What frustrates privilege? There are dangers in secrecy, whether or not it has a lawful basis. No mention of secrecy nowadays is made without some heed to Watergate. Secrecy there laid the cover for dirty tricks. If openness is salutary in the political arena, it is appropriate to question the justification of a shield in other areas. Justice Brandeis once observed, "Sunlight is the best of disinfectants."

Allegedly to achieve balance, exceptions have been carved into the psychotherapy privilege, but these exceptions leave little or no shield cover, very much resembling a payroll statement where most or all of the pay has been deducted.

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