A court decision allowing audio tapes of counseling to be used in a murder trial has mental health professionals worried that the ancient tradition of patient confidentiality is in danger. California courts opened the door to the psychotherapist's office a bit wider with a decision Aug. 6 allowing tapes of counseling to be used against brothers Lyle and Erik Menendez in the slaying of their parents. Jose and Kitty Menendez were shot repeatedly at close range in their Beverly Hills mansion in 1989. Six months later, police arrested Lyle, 21, and Erik, 19, alleging the young men coveted their parents' $15 million estate. Prosecutors argued that tapes of the brothers' counseling sessions with therapist L. Jerome Oziel, in which they reportedly confessed to killing their parents, could be used as evidence. Superior Court Judge James Albracht agreed, saying the tapes were not covered by laws guarding patint-therapist communication. These statutes are an extension of the right of privacy between doctor and patient that dates to Greek philosopher Hippocrates, the founder of modern medicine. The Hippocratic oath, still taken by new physicians, binds doctors to secrecy about their patients' cases. Many psychotherapists say the courts are eroding this vow when the need to protect society clashes with an individual's right to privacy. ``Confidentiality is the cornerstone of the relationship between patient and therapist,'' said Win Schachter, an attorney for the American Psychological Association in Sacramento. ``They (patients) talk about their most intimate and deepest thoughts. If there is a hole in that privacy, they will feel less secure and safe.'' Albracht's Menendez decision was upheld by the state Court of Appeal and is now before the California Supreme Court, which ordered the tapes sealed until it decides whether to hear the case. In making his decision, Albracht cited a recent state Supreme Court case, People vs. Clark. William John Clark was convicted of injuring his former therapist and murdering her husband by setting the couple's home on fire. While in therapy during the trial, Clark told another psychologist he wanted to kill two other people. That therapist warned the two people, following guidelines established in a 1974 landmark duty-to-warn ruling called the Tarasoff decision. She later testified about Clark's murderous desires. Clark, sentenced to death, appealed the verdict, arguing that he had not given his therapist permission to break confidentiality. But the Supreme Court ruled the sessions were not privileged because the therapist had already broken confidentiality by issuing the warnings, as required under Tarasoff. Since the Oziel tapes - as well as transcripts of the secret hearings on their admissibility - remain sealed, it is not known for sure what parallels exist between the Clark and Menendez cases. Yet a woman who claims to have had a romantic relationship with Oziel said in the current issue of Vanity Fair magazine that the therapist let her listen to sessions in which the brothers confessed to the murders. Although Oziel has denied he shared the tapes, refusing further comment, prosecutors say the brothers threatened the therapist. Under Tarasoff, this would make the counselor's alleged sharing of the tapes acceptable and therefore admissable in the Menendez case under Clark. ``Once the facts become known,'' Albracht said, ``it will be fairly clear that this case falls squarely within the statute.'' Gerald Chaleff, Lyle Menendez's attorney, acknowledged that threats were made but questioned the judge's decision to allow all the tapes into evidence. ``What has to be divulged is only what is necessary to prevent danger,'' he said. The APA's Schachter said the Menendez decision could have a chilling effect on therapy. ``The decision might imply that any careless words or placing of files might inadvertently trigger an opening of what was believed to have been confidential,'' he said. ``It could be incredibly damaging.'' However, Elliott Alhadeff, the prosecutor who argued for the tapes to be released, said, ``The patient has nothing to worry about as long as he trusts his psychotherapist.'' In the 1950s and 1960s, nearly all states passed laws requiring physicians and therapists to report suspected child abuse. Next came the far-reaching Tarasoff decision by the California Supreme Court. It requires counselors to warn people who they feel may be in danger from their patients, based on conclusions stemming from the patients' treatment. The decision makes thetherapist liable for civil damages for any harm that may occur. Dozens of other court decisions have further limited patient privacy, and therapists wonder where it will end. ``Will we have the same duty to prevent burglary, or if someone says he is going to punch that kid?'' asked Gary Schoener, a Minneapolis psychologist who has published many articles on confidentiality. ``Where do you draw the line? You can't expect the therapist to do the job of policing society.''
