A woman who is suing her workplace and managers for sexual harassment will not have to disclose the records of her psychological sessions, the High Court of Justice ruled on Thursday, reversing previous court verdicts in the case.
The High Court ruled that the complainant’s right to privacy takes precedence over the defense’s need to assess the emotional damage done to the complainant.
The regional labor court in Tel Aviv and the National Labor Court had ruled that the records of the psychologists who treated the complainant over 10 months were required to assess the emotional damage caused her and ordered her to hand them over to a psychiatrist for the defense.
The plaintiff, a longtime employee of Lev Group Media, sued the company last year for sexual harassment and other harassment by a number of managers whose names were banned from publication. The woman submitted a psychiatric opinion detailing the emotional damages she suffered and is asking for some half a million shekels in compensation.
The company’s lawyers demanded the records made by the complainant’s two psychologists from the Tamir Institute for Psychotherapy in order to prepare an opposing psychiatric opinion. The defense psychiatrist argued that he needed the records because he assumed the plaintiff wouldn’t cooperate with him as an expert witness for the defense. The labor courts accepted his argument.
High Court Justice Isaac Amit, who was joined by justices Alexander Stein and David Mintz, wrote in the verdict that the labor courts were wrong to assert that the psychologists’ records were relevant to the suit. “I have yet to see a damages suit in which the mental health expert for the respondents demanded the records of the psychologist who treated the plaintiff,” he wrote.
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Amit said that a conversation between the psychiatrist and the plaintiff was enough to prepare an opposing psychiatric opinion to assess the damage done to her and there was no need for her psychologists’ records.
He said the ruling of the labor courts, which would force plaintiffs to reveal extremely sensitive information by the very act of filing a suit, could have a chilling effect on filing suits, especially for sexual offenses.
“Society has a clear interest in the mental rehabilitation of victims of sexual offenses,” Amit wrote in the verdict. “The therapist-patient privilege protects the therapeutic process and encourages the victim to ask for treatment to help her heal from the trauma and distress she had suffered. Hence the power of the therapist-client privilege regarding sex offenses.”
Even in a criminal procedure, when the defendant has a right to due process and to reveal information that could contribute to the defense and to finding out the truth, “the courts don’t easily allow exposing information that could infringe on the complainant’s privacy in general, and information pertaining to psychological treatment in particular,” he wrote.
Justices Amit and Stein noted that the defense psychiatrist’s assumption that the woman wouldn’t cooperate with him did not justify breaching the therapist-patient privilege. In any case, he said, if she thwarted her psychiatric examination, it would be held against her as part of the ruling in the case.
Justice Stein said the defendants were asking for information that could “infringe on the plaintiff’s privacy without relevant justification.” He emphasized the importance of the therapist-patient privilege. “Ensuring this confidentiality is extremely necessary to enforcing the ban on sexual harassment. If the confidentiality is not assured, quite a few sexual harassment victims would choose not to complain – which would weaken the enforcement of the ban and increase the incentive to carry out acts of sexual harassment,” he said.
Justice Amit said he was astonished that the Tamir Institute, which had joined the procedure, did not take a stand on the demand of the defense. “One would expect a psychologist to ask to protect the confidentiality between himself and his patient and at least to state whether exposing the material would cause the patient any harm,” he wrote.