Supreme Court Decision, Part 2

["Meg H. O'Donnell" <mhodonnell@yaz.hca.state.vt.us>]

A brief addendum to clarify one other misperception of the Jaffee v. 
Redmond case (specifically in response to a comment by METRA1001 on 
June 18):

Individual trial judges do *not* have the "right to make the call" on 
whether the privilege applies.  The Appeals Court had indeed imposed a 
balancing test.  It was not adopted by the Supreme Court, which 
wrote:  "We reject the balancing component of the privilege 
implemented by that court and a small number of States.  Making the 
promise of confidentiality contingent upon a trial judge's later 
evaluation of the relative importance of the patient's interest in 
privacy and the evidentiary need for disclosure would eviscerate the 
effectiveness of the privilege."  (See slip opinion at p. 16.)  This 
means that there is a privilege and, so long as it is not waived, the 
records will not be admitted into court, regardless of arguments 
about the evidentiary need for them.


_____________________________________________
Meg H. O'Donnell
General Counsel
Vermont Health Care Authority
mhodonnell@yaz.hca.st.vt.us