The Value Basis And China’s Approach Of Psychotherapist-patient Privilege

Since the 1990 s,the rule of psychotherapist-patient privilege has been established in many countries and has been widely recognized.Although“Mental Health Law of the People’s Republic of China”,“Law on Practicing Doctors of the People’s Republic of China” and other laws and regulations have made specific provisions on the confidentiality obligations of psychotherapist,the psychotherapist-patient privilege is still in a blank state of legislation.In judicial practice,psychotherapist often testify in court about the secret communication with patients during the treatment process according to judicial needs,which to a certain extent violates the confidentiality obligations of psychotherapist and ignores the protection of patients’ rights.When a psychotherapist is required to testify,how to balance the accurate value and harmonious value of evidence law,and how to protect the human rights of patients while taking into account judicial justice has become a rather difficult issue.This paper takes the psychotherapist-patient privilege as the core,draws on the practical experience of foreign countries(typically the United States)in legislation and justice,and based on the value concept of promoting social harmony and protecting human rights,through “Criminal Procedure Law of the People’s Republic of China” and “Civil Procedure Law of the People’s Republic of China” adds provisions on privileges,clarifies the applicable procedures and relief methods of privileges,and attempts to construct a Chinese approach to protecting the privileges of psychotherapist and patients.The main content and viewpoints of the article are as follows:The first chapter discusses the basic concept of psychotherapist-patient privilege.Psychotherapist-patient privilege refers to the right of the patient to exempt the psychotherapist from testifying in court for secret communication for the purpose of diagnosis and treatment in litigation activities.The subjects of rights are patients,and the scope of rights protection is secret communication for the purpose of diagnosis and treatment.Psychotherapists are not only bound by professional ethics,but also have the obligation of confidentiality not to disclose patients’ privacy and information to third parties.Psychotherapist-patient privilege endows patients with the right to resist the compulsory evidence collection by public power in litigation,which is a further protection of secret communication and reflects the orientation of the fundamental rights safeguard of evidence Law.The second chapter introduces the American psychotherapist-patient privilege system,and draws more mature practical experience for our country to build a psychotherapist-patient privilege system.In 1969,the United States “Proposed Federal Rule of Evidence” 504 stipulated the rules of psychiatrist-patient privilege.In 1996,the U.S.Supreme Court officially recognized the psychotherapist-patient privilege in the case of Jeffrey v.Redmond,and expanded the scope of psychotherapists from “a person authorized to practice medicine in any state or nation” and “licensed or certified as a psychotherapist” to licensed social workers and other mental health workers.Exceptions to the psychotherapist-patient privilege include:first,disclosures necessary to protect a criminal defendant’s right to pledge;second,involuntary medical treatment situations such as hospitalization,court-ordered examinations;and third,conditions that facilitate crime or Circumstances of Fraud.The third chapter analyzes the value base established by the psychotherapist-patient privilege rule.First,social harmony.psychotherapist-patient privilege not only serves private interests such as“the interests of patients receiving psychiatric treatment”,but also serves public interests such as “the mental health of citizens”.Second,the protection of human rights.Psychotherapist-patient privilege meet the needs of human rights protection such as the right to privacy and the right to health.In order to balance the value conflicts between “discovering the truth” and “social harmony” and “human rights protection”,it is necessary to limit the scope of application of the psychotherapist-patient privilege.On the basis of fully considering the demands of different stakeholders,the substitutability of evidence,and the legal rights of the defendant,it is up to the judge to exclude the application of the psychotherapist-patient privilege based on fair discretion in individual cases.The fourth chapter proposes a Chinese approach to constructing the rules of psychotherapist-patient privilege.The pursuit of objective truth while ignoring the protection of rights,the misconception that “setting up privileges will aggravate the difficulty of witnesses appearing in court”,the small number of practitioners in psychiatric diagnosis and treatment,and the low degree of professionalization lead to insufficient endogenous motivation for privileges,etc.,which are the main factors hindering the construction of the psychotherapist-patient privilege system in my country.By improving the external legal environment of psychiatric diagnosis and treatment,promoting the transformation of the concept of evidence law from obligation-based to right-based,and providing a theoretical and empirical investigation data basis for legislation is a prerequisite for the construction of psychotherapist-patient privilege in my country.The Chinese approach to constructing the rules of psychotherapist-patient privilege mainly includes three aspects: first,clarify that privileges protect patients’ basic human rights such as the right to health and privacy,promote social harmony,and achieve judicial justice significance.Second,apply privileges to the whole process of litigation,implement the special immunity right notification mechanism,and the court will decide whether to apply the special immunity power.Third,clarify the relief methods for wrongly adopted or wrongly rejected privileges,and improve the professional punishment mechanism for psychotherapists.The right subject of the privilege can choose reconsideration or appeal according to specific circumstances,and claim relief in tort law or administrative law.