Allred v. State , 554 P.2d 411 ( 1976 )

OPINION

CONNOR, Justice.

This case requires us to determine whether, and to what extent, a psychotherapist evidentiary privilege exists in Alaska.

On February 20, 1974, Paul D. O’Keefe was found dead in a hotel room in Anchorage. The room was rented to James D. Allred. Subsequently he was located by the Anchorage police at the Langdon Psychiatric Clinic, and was taken to police facilities for further questioning.

It is claimed that following detailed questioning by Investigator Ronald J. Rice, Allred made incriminating statements concerning the death of O’Keefe. There was no tape-recorded statement of this confession, however.

Allred asked to see Dr. Aron Wolf, a psychiatrist, or Shirley Henderson, who was a drug program coordinator and a counselor to petitioner. Henderson was summoned to the police station, and petitioner talked with her extensively. Thereafter Allred was indicted for first degree murder in connection with O’Keefe’s death.

Once legal proceedings against petitioner commenced, he moved to suppress any testimony by Henderson concerning the conversation at the police station, on the theory that these communications were privileged. Judge Kalamarides heard and denied this suppression motion. At trial the state called Mrs. Henderson to testify. Following extensive argument Judge Edmond Burke ruled that she should testify to her conversation with Allred during their encounter at the police station. Henderson testified that:

“He [Allred] told me that he and Paul [O’Keefe] went to the Kobuk, that they had some wine and had been drinking some wine prior to that time, and that they had some valiums between the two of them and that they split them up and that they had been together most of that day and were discussing a suicide pact and that that discussion continued there in the Kobuk. I don’t recall whether or not a decision was made at that time— who would do what first. But Del [Allred] did recall and told me that he had blacked out or passed out and was awakened by Paul, who was crying and begging him and saying, if you are my friend you will kill me — please, and he —with tears in his eyes — ahh—and begging Del. Dell told me that he had a gun and that he did shoot Paul, and that Paul laid on the floor and was jerking and moving and that he hit him with the gun but that he still didn’t stop moving, and that this was his friend and he was doing this for his friend because they were such good friends, and that he picked Paul up and put him in the bath tub and turned the water on until Paul. stopped moving. After that he went into the bedroom — the adjoining room there— and he laid down with a gun at his own head, with his hand (sic) on the trigger, and he tried several times and could not pull the trig — trigger. He told me that he did not have the guts to do it, and that he just laid there. He didn’t — he didn’t remember whether he slept or— but that he laid there until the phone rang, which was the motel people calling him at 7:00, as he had pre-arranged for them to wake him up. He ca — I don’t remember whether Del called a cab or whether the motel people called a cab, but that he got a cab and he came out to our office after that.”

The defense apparently was able to introduce evidence tending to show that O’Keefe had committed suicide. In any event, the jury was unable to reach a verdict, a mistrial resulted, and a new trial is contemplated. We have granted review to determine whether any psychotherapist-patient evidentiary privilege would prevent Mrs. Henderson at retrial from testifying to her conversation with the defendant at the police station.

I.

The word “privilege” is a corruption of the Latin phrase “privata lex”, meaning a private law applicable to a small group of persons as their special prerogative. Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L.Rev. 175, 181 (1960). The English doctrine of privilege is nearly as old as common law compulsory testimony. Privilege was originally conceived of in England as a judicially recognized point of honor among lawyers¹ and other gentlemen² not to reveal confidential communications. This general rule of honor was conclusively repudiated in 1776,³ although lawyers were able to maintain a privilege for their profession.⁴

The common law did not recognize a physician-patient privilege.⁵ Alaska Civil Rule 43(h) (4) provides:

“A physician or surgeon shall not, against the objection of his patient, be examined in a civil action or proceeding as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”

This privilege does not extend to criminal cases, however. Criminal Rule 26(a), (b); Civil Rule 43(h)(4). Even if it did, the rule would not cover communications to a psychiatric social worker.⁶ See Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670 (2d Cir. 1971).⁷

II.

Allred relies on AS 08.86.200 to provide a statutory psychotherapist privilege in criminal cases.⁸ The provision nowhere states that it was intended as creating a privilege. It does not refer to courtroom testimony. The general thrust of its language seems to point towards “anti-gossip” considerations. If a testimonial privilege is also included within its ambit, the statute would be an amendment to Criminal Rule 26. See also Civil Rule 43(h). Even though passed by a two-thirds majority of both houses,⁹ an amendment to a court rule is not effective “unless the bill specifically states that its purpose is to effect such a change.” Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963); see also Criminal Rule 52. The legislature’s addition of a newspaper reporters’ privilege, for instance, was accomplished as an express change in the court rules. See AS 09.25.-160; § 2 Ch. 115 SLA 1967. This latter measure was enacted during the same session as was the Psychologist Licensure Act, including AS 08.86.200. The legislature’s failure to create expressly an eviden-tiary privilege for psychotherapists while doing so for newspapermen indicates a legislative intent that psychotherapists were not to be so favored. That the bill was referred to the House Judiciary Committee in the course of passage (CSSB 53, 1967 House Journal of Alaska 676) is immaterial; we note that the 1973 amendment to this section was not referred to the Judiciary Committee. SB 102, 1973 House Journal of Alaska 974.

It is only as an “anti-gossip” measure that AS 08.86.200 makes sense. The statute provides that only a writing may waive whatever rights a patient acquires under the section. But evidentiary privileges are traditionally much more easily waived, in light of the strong competing policy in favor of compulsory testimony. See Mathis v. Hildebrand, 416 P.2d 8 (Alaska 1966). By enacting AS 08.86.200 as an “anti-gossip” measure the legislature has opened the door to professional licensing sanctions¹⁰ and possibly broadened the scope of common law duty¹¹ in suits against indiscreet psychotherapists.

Allred argues that the federal and Alaska¹² constitutions require an eviden-tiary psychotherapist privilege resulting from the right to privacy, citing Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and In re Lifschutz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, 567-68 (1970). See Note, Psychotherapy and Griswold: Is Confidence a Privilege or a Right ?, 3 Conn.L.Rev. 599, 604 (1971). Since it is apparent that Mrs. Henderson was not a police agent, we do not perceive any state action that would trigger the constitutional privacy guarantees, unlike the situation in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954) ¹³

III.

The question remains whether a common law psychotherapist privilege should be recognized and, if so, what its scope ought to be. As we have seen, the only professional relationship traditionally privileged at common law was that of lawyer and client.¹⁴ Because of the strong need for compulsory testimony, the creation of new privileges is generally looked upon with disfavor by the commentators. Branzburg v. Hayes, 408 U.S. 665, 690, n. 29, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); 8 J. Wigmore, Evidence § 2286 (McNaughton rev. ed.1961).

The courts have created privileges in modern times, however, when they have found sufficient policy justification for doing so. Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 275, 279 (1959) (Fahy, J., concurring) and Cook v. Carrol, [1945] Ir.R. 515 (High Ct., excerpted in 8 J. Wigmore, Evidence § 2394, at 871 [McNaughton rev.ed.1961]), are examples of judicial common law constructions of priest-penitent privileges. The English courts recognize the doctrine of “conversations without prejudice” whereby statements made to marriage counselors who are attempting to effectuate reconciliation cannot be used as evidence in divorce proceedings. See, e. g., McTaggart v. McTaggart, 2 [1948] All E.R. Reprint 754, 755 (Ct.App.). At least one Canadian court has followed suit. In re Kryschuk and Zulynik, 14 D.L.R.2d 676 (Sask.Magist.Ct.1958). One American trial court has specifically created a psychotherapist-patient privilege as a matter of decisional common law, although the result has been criticized.¹⁵

In the federal area, the United States Congress is apparently of the opinion that the creation of a psychotherapist-patient privilege is properly one of common law development through court decision. In reducing the privilege sections of the Proposed Federal Rules of Evidence to one general provision, Congress clarified its intent as follows:

“[I]t should be clearly understood that, in approving this general rule as to privileges, the action of Congress should not be understood as disapproving a recognition of a psychiatrist-patient, or husband-wife, or any other of the enumerated privileges contained in the Supreme Court rules. Rather, our action should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis.” Senate Report, Fed.R. Evid. 501, J. Moore, Moore’s Federal Practice: Federal Rules of Evidence 501 (1875) 511.

Professor Wigmore has proposed four canons to be used as a basis for determining whether, for any particular relationship, a common law privilege is desirable. These are:

“(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.” 8 J. Wigmore, Evidence, § 2285. (Emphasis in original) ¹⁶

In our view the psychotherapeutic relationship satisfies each of these canons. First, communications to a psychotherapist in the course of therapy are inherently confidential. Patients often make statements in psychotherapy which they would not make to even the closest members of their families. Psychotherapy tends to explore the innermost recesses of the personality, the very portions of the self which the individual seeks to keep secret from the world at large. Revelation of such matters could have an irrevocably harmful effect upon the reputation and well being of the patient. See Slovenko, supra note 15, at 185, 187.

Second, inviolability of the confidence is essential to achievement of the psychother-apeutic goal. Without foreknowledge that confidentiality will attach, the patient will be extremely reluctant to reveal to his therapist the details of his past life and his introspective thoughts and feelings. Without the patient’s confidence a psychiatrist’s efforts are worthless. In therapy the patient must often lay bare his entire inner life, including his fantasies, his past behavior, and his feelings of guilt or shame. See Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398, 401 (1955) (Edgerton, J.). Third, the relationship between psychotherapist and patient is unquestionably one which should be fostered. Psychiatry and its techniques of therapy are relatively young as specialized fields, but they have received widespread recognition as a valid sphere of medical science. Indeed, our legislature has recognizéd the importance of psychotherapy by prohibiting certain revelations by psychologists and psychological associates in AS 08.86.200, discussed earlier in this opinion. See also In Re Lifschutz, 2 Cal.3d 415, 467 P.2d 557, 560 (1970).

Finally, in balancing injury to the relation, by fear of disclosure, against the benefit to justice by compelling disclosure, the scales weigh heavily in favor of confidentiality. We believe that the goals of therapy may be frustrated if the privilege does not attach. Reason indicates that the absence of a privilege would make it doubtful whether either psychotherapists or their patients could communicate effectively if it were thought that what they said could be disclosed compulsorily in a court of law. We are also aware of the delicate position occupied by the psychotherapist himself. Because of the special nature of a patient’s confidences,¹⁷ the psychotherapist is subject to an even more stringent honorable obligation not to disclose, under any circumstances, than are other professionals. We do not wish psychotherapists to be faced with the dilemma of either violating this extraordinary trust or being incarcerated. See In re Lifschutz, supra, at 559-60, 565-66.

In conclusion, we recognize a common law privilege, belonging to the patient, which protects communications made to psychotherapists in the course of treatment.¹⁸

IV.

We now turn to a consideration of the scope of the privilege.¹⁹ At the outset it appears to us that the psychotherapist privilege cannot be extended to all manner of counselors, social workers, and psychological associates. The number of persons engaged in such capacities is so great that it is hard to estimate the number of relationships and conversations which would fall within the privilege. Moreover, it appears to us that there is a substantive difference between the activities comprehended under the term “psychotherapy” and those covered by the fields of counseling and psychiatric social work.

Much psychological counseling has as its direct or indirect goal the improvement of the client or patient in his current adaptation to reality, his relationships with others, and his ability to handle his personality problems more adequately. But this does not mean that all forms of psychological counseling should be equated with “psychotherapy” in the serious sense of that term. Psychotherapy literally means “treatment of the mind.” It commonly refers to the use of psychological means to modify mental and emotional disorders of a serious, disabling nature. In its technical application the therapist, through interview sessions, verbally explores the patient’s conflicts, feelings, memories and fantasies in order to provide insight into the causes of the disorder. Encyclopedia of Psychology, at 100 (N.Y.1972). “Psychotherapy” implies treatment by medical personnel, or treatment by non-medical professionals (clinical psychologists) who are as well trained as physicians to employ psychological methods of treating emotional and personality disturbances.²⁰

By contrast “counseling” most often refers to psychological efforts of a non-medical nature, administered by non-medical personnel. Counseling is aimed not primarily at uncovering deep psychological processes but at enabling the client to make more effective use of his present resources. Counseling includes vocational, educational, employee, rehabilitation, marriage, and personal guidance within its spheres of operation.

An additional distinction between psychotherapy and counseling must be drawn according to the type of training which is a prerequisite for practicing each of those fields of endeavor. Counselors may have little or no training in formal psychology and methods of treatment.²¹ Psychotherapy should be practiced only by persons who have undergone rigorous intellectual and practical training. Only psychiatrists, who are medically qualified, and a limited number of professional psychologists should be permitted to practice psychotherapy. Professor J. Hadley, Clinical and Counseling Psychology (N.Y.1958) 560, states that to be adequately prepared to practice as a clinical or counseling psychologist one should have earned a Ph.D. in psychology, and should have received additional training in specific applications of psychology to clinical problems. The American Board of Examiners in Professional Psychology requires a doctorate plus five years of experience in order to achieve certification. Id., 561. It is only a few highly qualified psychologists who should practice psychotherapy at all, and even then it should be done in collaboration with licensed medical personnel in all but exceptional instances. Id. 611-617. See also W. Menninger, “The Relationship of Clinical Psychology and Psychiatry”, American Psychologist, 3, 4 (1950).

Moreover, counseling is considerably more superficial and less searching than what we understand to be included within the term “psychotherapy”. Counseling either does not, or should not, have as its aim a deep penetration into the psychic processes of the patient or client. The need for a privilege to foster the counsel-client relationship is, correspondingly, less readily apparent. It is true that clients of counselors may reveal incriminating or degrading facts about themselves, but this cannot be considered a necessary concomitant of the counseling relationship. Such revelations are more in the nature of an unintended byproduct of the counseling activity. Such utterances are neither essential nor necessary to the successful realization of the counseling goal. There may be instances in which counselors attempt to uncover the intimate, personal secrets of their clients, but we do not view such activity to be essential or proper to the counseling function. In any event, such occurrences would not provide sufficient justification for extending an evidentiary privilege to the field of counseling as a whole.

We note that the legislature has drawn a similar distinction in the statutes regulating the practice of professional psychology. To be a licensed psychologist in Alaska one must hold a doctoral degree in psychology from an accredited school, must have at least one year’s experience acceptable to the Board of Psychologist and Psychological Associate Examiners, and must have passed an examination given by the board. AS 08.86.120-130. To be licensed as a psychological associate in Alaska it is necessary that the applicant hold a master’s degree from an accredited or approved educational institution, with at least 24 credit hours of course work directly related to counseling or another specialized area in which licensure is requested, including a practicum, that he have three years’ experience within the past ten years, two of which are in Alaska, including one year of supervised postgraduate experience acceptable to the board, and that he have the recommendation of his immediate supervisor, if a licensed psychologist, or two licensed psychologists. AS 08.86.162. He must also pass an examination. AS 08.86.160.

Statutorily only a psychologist may practice psychology. AS 08.86.170. A psychological associate may practice counseling AS 08.86.190. A psychologist may employ psychotherapeutic techniques in his practice. AS 08.86.230(2) (B). A psychological associate may only employ counseling techniques. AS 08.86.230(7) (B). While the statutory definitions are not too helpful about the distinction between psychothera-peutic techniques and counseling techniques, it is noteworthy that the legislature employed a sharp semantic demarcation between them. The statutes do evince a policy that psychotherapy be practiced only by licensed psychologists, and that others such as psychological associates be limited to the practice of counseling.²² If even psychological associates, whose qualifications are considerable, may not practice psychotherapy, it follows that the legislature did not intend that persons with lesser qualifications should practice psychotherapy. We find this legislative distinction helpful, not because it sets the boundaries of the privilege — to us a matter of common law development — but because it evinces the public policy of Alaska and fortifies us in deciding a question of common law. See S.L.W. v. Alaska Workmen's Compensation Board, Alaska, 490 P.2d 42, 45, 46 (1971).

We believe that the psychotherapist-patient privilege can be held within proper bounds — while still fulfilling the purposes of the privilege — by using a two-fold test of applicability. The first criterion focuses upon the professional status of the person to whom the communication is made. As we have shown above, the evidentiary privilege should extend only to communications made to a psychiatrist or a licensed psychologist.²³ The second criterion focuses upon the type of communication in question. We believe that the evidentiary privilege should extend to communications made in the course of intensive, deep psychotherapy, of the type which requires confidentiality for its success. This necessarily includes communications made in the course of diagnostic interviews and examinations which might reasonably lead to psychotherapy, as we have delineated that term. Excluded from the privilege, for example, would be statements made by a patient to a psychiatrist or psychotherapist outside of the therapeutic relationship.

In brief, the test can be stated as follows :

1. Was the communication made to a psychiatrist or a licensed psychologist?

2. Was the communication made in the course of psychotherapeutic treatment, or of examinations or diagnostic interviews which might reasonably lead to psychotherapeutic treatment?

If both these questions are answered affirmatively the privilege applies.²⁴

Measured against this test, it is apparent that Allred’s statements to Mrs. Henderson do not qualify as privileged, as she was neither a psychiatrist nor a licensed psychologist, and the statements were not given in the course of psychotherapeutic treatment.²⁵

Allred asserts that a distinction between licensed and unlicensed practitioners is a violation of the “equal protection” clauses of the state and federal constitutions²⁶ He argues that the psychiatric social worker is “the poor man’s psychiatrist,” and that limiting the evidentiary privilege to licensed practitioners results in impermissible practical discrimination based on wealth.

We stated in Ravin v. State, 537 P.2d 494, 498 (Alaska 1975), that where the right to privacy is involved,

“we will require that the relationship between means and ends be not merely reasonable but close and substantial.”

Since an evidentiary privilege affects some of the same concerns as does the right to privacy, we adopt the Ravin test in the instant case. We find, however, that the line we have drawn is a means closely and substantially related to our ends. The need for an evidentiary privilege decreases with the privacy of the communications involved, and hence with the “depth” of psychological probing and the seriousness of the case. This gradation can be equated, roughly, to the skill and training of the practitioner. The dividing line chosen provides a workable estimate of this skill and training. As with any drawing of lines, no absolute certainty is possible, but the line is not drawn arbitrarily or as a matter of caprice.

Allred argues that only a compelling state interest will suffice to uphold this distinction, on the authority of San Antonio Ind. School Dist. v. Rodriguez, 411 U. S. 1, 20-21, 93 S. Ct. 1278, 36 L.Ed.2d 16, (1973). There the United States Supreme Court indicated that wealth discriminations would require strict scrutiny only if the facts involved an “absolute deprivation” of the benefit at issue, because the disadvantaged persons were “completely unable to pay.” Allred does not offer sufficient data to substantiate this constitutional claim.²⁷

In conclusion, a majority of this court agrees that a common law psychotherapist-patient privilege obtains in Alaska. One member of the panel sitting on this case believes that the statutory privilege covers Allred’s communications. Two' members are of the opinion that the common law privilege covers Allred’s communication. Two of us, the author of this opinion and Erwin, J. are of the view that the privilege does not extend to Allred’s communication. Accordingly, the ruling of the superior court is remanded for further proceedings consistent with the holding of a majority of this court.

BURKE, J., not participating.

BOOCHEVER, C. J., concurring.

RABINOWITZ, J., concurs in separate opinion in which DIMOND, J. Pro Tem., ' joins.

DIMOND, J. Pro Tem., concurring.

1 . Berd v. Lovelace, Cary 88, 21 Eng.Rep. 33 (Ch. 1577); tut see note 4. The modern use of witness testimony before the jury did not become common until the early 1500’s, and compulsory testimony was not “generally authorized” at common law (as opposed to chancery proceedings) until the middle of Elizabeth’s reign. Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12 (1562-63). The medieval rule of non-compulsory testimony resulted in part from the traditions of ancient Germanic law, and in part from an aversion to “maintenance”, i. e., friends of interested parties attempting to influence a jury. See generally 8 J. Wigmore, Evidence § 2190 at 63-65, § 2290 at 542-43 (McNaughton rev. ed. 1961). Jury duty was, however, compulsory.

2 . See generally 8 J. Wigmore, Evidence § 2286 at 530-31 (McNaughton rev. ed. 1961).

3 . Duchess of Kingston’s Case, 20 How.St.Tr. 355, 2 Smith L.C. 754 (12th ed.), 1 East, P.C. 468, 1 Leach 146, [1775-1802] All E. R. Reprint 623, 625-26 (H.L.1776). Lord Mansfield there held that there was no privilege for a physician; the Duchess was found guilty of bigamy, but the case was dismissed on a plea of benefit of clergy. See generally 8 J. Wigmore, Evidence § 2286, at 531 (McNaughton rev. ed. 1961).

4 . One explanation has been advanced as to why lawyers maintained their privilege while other gentlemen lost theirs in the 18th century onslaught against “honor” as a basis for withholding testimony. The lawyers, it seems, characterized themselves as mere servants who should be required to keep their masters’ confidences. Thus the privilege was transferred from lawyers to their clients.

This may stem from Roman law. As early as 123 B.C. the Acilian law of bribery made lawyers incompetent to testify against their clients. Cicero deplored his inability to call an opposing lawyer in a corruption case. By the 4th century A.D. “advocates and attorneys (agents) were made completely incompetent as witnesses in the case in which they acted.” M. Radin, The Privilege of Confidential Communication Between Lawyer and Client, 16 Calif.L.Rev. 487, 488 (1928). This rule of evidence rested on the duty of fidelity (fides) owed alike by a servant (slave) and a family member to the family group. Specifically it was thought that the attorney’s testimony was useless, whether in favor (because loyalty provides a motive for misstatement) or against (because violation of the fides proved the witness’ disreputability) the client. Id. at 488-89. Radin admits he cannot show that English practice was influenced by the Roman rule. Id. at 489. But he notes that the “honor” theory of privilege is not a completely satisfactory explanation even for Elizabethan practice. While barristers were gentlemen, Berd v. Lovelace, supra, note 1, involved a solicitor; solicitors were merely middle class “men of business”, and yet they acquired the privilege. Hence there may have been notions of loyalty as well as hon- or as a basis for English practice. Id. at 487. It is noteworthy that, in the Tudor period, modern servile implications of loyalty to a master would not necessarily be relied upon because the chivalric feudal duty of loyalty was still known and respected.

It appears that by the 19th century the lawyer-client privilege was firmly entrenched. Any characterization of professionals as mere servants or, a fortiori, any unstated resort to feudal loyalty, had vanished, preventing the new professions founded in that century from justifying any acquisition of a common law privilege. Note, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communication Doctrine, 71 Yale L.J. 1226, 1228-29 (1962).

The difficulty with this rationale is that doctors were not able to maintain their privilege in the 18th century, when the “servant’s loyalty” theory was supposedly supporting the lawyers. They are “servants” as much as are lawyers; indeed, developmentally English society regarded the “physician” as of somewhat lower social class than the lawyers. Perhaps the pundonor of gentlemen-lawyers still lurked in the background; perhaps stare decisis and the accident that it was the Duchess of Kingston’s physician who was denied an honor-based privilege in 1776, see note 3, supra, is the explanation; or perhaps the difference is in part explainable because the English bench was and is drawn from the bar, not the medical profession.

In seeking a correct historical basis, the combined concepts of “honor” and “loyalty” provide a much more candid and defensible explanation of the privilege doctrine than do post-enlightenment attempts at rationalization. Although the concepts are ancient, are usually phrased in archaic terminology, and are related to out-dated notions, they are nevertheless firmly entrenched in the modern consciousness. The notion that a professional, as a man of particular personal honor, should not divulge matters learned in the professional relationship is not alien to modern attitudes.

5 . E. g., Duchess of Kingston’s Case, 20 How.St.Tr. 355, 2 Smith L.C. 754 (12th ed.), 1 East, P.C. 468, 1 Leach 146, [1775-1802] All E. R. Reprint 623, 625-26 (H.L.1776); Sherman v. Sherman, 1 Root 486 (Conn.1793); see Mathis v. Hildebrand, 416 P.2d 8 (Alaska 1966); see generally 8 J. Wigmore, Evidence § 2380 at 818-19 & n. 3 (McNaughton rev. ed. 1961); 3 Wharton’s Criminal Evidence § 563 (13th ed. 1973).

6 . Mrs. Henderson testified that she is not a psychotherapist. She is characterized as a psychiatric social worker by petitioner.

7 . Holding a statutory privilege not applicable to a psychiatric social worker in a civil suit. “Because there was no physician-patient privilege at common law, we are reluctant to go beyond the strict language of the statute, and the New York courts have shown no tendency to broaden the types of communications covered [citations].” 451 F.2d at 682. Unlike the Alaska provision, the Fitzgerald statute covered a large class of privileged persons, including “a person authorized to practice medicine”, a registered nurse, a practical nurse or a dentist (451 F.2d at 681 n. 7), instead of only a “physician or surgeon”. See Alaska Civil Rule 43(h) (4).

8 . AS 08.86.200 provides:

“Confidentiality of Communication. No psychologist or psychological associate may reveal to another person a communication made to him by a client of his about a matter concerning which the client has employed the psychologist or psychological associate in a professional capacity. This section does not apply to a case confer-ference with other psychologists, psychological associates or with physicians and surgeons, or in the case in which the client in writing authorized the psychologist or psychological associate to reveal a communication.”

9 . 1967 Senate Journal of Alaska 607 (17 to 3) ; 1967 House Journal of Alaska 773 (33 to 1, 6 absent) ; 1973 Senate Journal of Alaska 615 (13 to 5); 1973 House Journal of Alaska 1051 (31 to 6, 3 absent).

10 . Although violation of the professional confidences rule under AS 08.86.200 is not a misdemeanor under AS 08.86.210, it may be subject to regulation by the Board of Psychologist and Psychological Associate Examiners under AS 08.86.080. The Board, after a hearing, can “suspend or revoke the license of a licensed psychologist or psychological associate” under AS 08.86.080 for violation of confidences, once it has adopted reg-lations on the subject.

11 . Hague v. Williams, 37 N.J. 328, 181 A.2d 345, 347 (1962), restricted the duty of confidentiality in a civil litigation setting, reasoning that New Jersey policy favored maximum information. It distinguished three out-of-state cases providing a greater privilege, reasoning that each of these three states had physician-patient privilege statutes evincing a strong public policy in favor of confidentiality. But see Hammonds v. Aetna Casualty & Surety Co., 243 F.Supp. 793, 800 (N.D. Ohio 1965). AS 08.86.200 could establish state policy without creating an evidentiary privilege.

12 . Alaska Const, art. I, § 22 provides:

“The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”

13 . In Leyra, the defendant had been interrogated by the police at various times during a four day period about the murder of his parents. When defendant complained of a painful sinus attack the police promised to obtain a physician to help him. Instead they brought a psychiatrist skilled in hypnosis, who persuaded the defendant to confess his guilt. This was held to be a denial of due process of law. The case at bar is distinguishable in that petitioner requested that Mrs. Henderson visit him.. Her interview at the police station was not at the instigation of the police.

14 . “It is perhaps open to argument whether a privilege for confessions to priests was recognized in common law courts during the period before the Restoration. . . . But since the Restoration, and for more than two centuries of English practice, the almost unanimous expression of judicial opinion (including at least two decisive rulings) has denied the existence of a privilege.” 8 J. Wig-more, Evidence § 2394 (McNaughton rev. ed. 1961).

15 . Binder v. Ruvell, Civil Docket No. 52C2535, Circuit Ct., Cook Co., Ill., reported in 15 A.M.A.J. 1241 (1952); see Note, (Jon-fidential Communications to a Psyehotherapist: A New Testimonial Privilege, 47 Nw.U.L.Rev. 384 (1952); Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L.Rev. 175, 196 (1960).

16 . These have been criticized as allowing too many privileges in Note, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the privileged Communications Doctrine, 71 Yale L..T. 1226, 1230 (1962). That article favors the psychotherapist privilege, however.

17 . See Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L.Rev. 175, 187, 194 (1960). The degree of intense personal privacy involved is such that psychotherapeutic communications must be distinguished from communications involved in other professional relationships, such as financial communications to a banker. The obligation of the psychotherapist is correspondingly greater than that of the banker.

18 . This privilege is in some respects analogous to the physician-patient privilege, and may be waived. See 8 Wigmore, Evidence, §§ 2388-91 (McNaughton rev. ed. 1961); C. McCormick, Evidence, § 80, at 164, §§ 105, 106 (1954); Mathis v. Hildebrand, 416 P.2d 8 (Alaska 1966).

19 . This portion of the opinion represents the views of the author and Justice Erwin. The views of the other justices participating in this case are stated in their separate opinions.

20 . Psychotherapy to some persons connotes an exhaustive, lengthy analysis of the patient’s personality pursuant to the doctrinal tenets and working methods established by Sigmund Freud. This is not invariably the case. There are other medically developed schools of psychotherapy including, but not limited to, Adlerian, Jungian, psychobiological (Adolph Meyer), neo-Freudian (Horney, Sullivan, Fromm), and existential approaches.

21 . How vague the term “counseling” is, even among those who teach and practice in the field, is illustrated by the following statement: “The individual who is known as a professional counselor might range all the way from someone who has just completed several semester hours of training, to someone whose name might happen to be Rogers or Freud or Menninger or May, but . it at least involves two human beings. . . . ” D. Arbuckle, Counseling: Philosophy, Theory and Practice (Boston 1970) 3.

22 . The statutory prohibitions on the practice of psychology and counseling contain exceptions as to persons employed by a governmental unit, an educational institution, and private agencies, under certain conditions. These exceptions, although broad, do not obliterate the basic, normative differentiation between psychotherapy and counseling.

23 . The “requirement that the psychologist be in fact licensed, and not merely believed to be so, is believed to be justified by the number of persons, other than psychiatrists, purporting to render psychotherapeutic aid and the variety of their theories.” Advisory Committee Note, Proposed Federal Rule of Evidence 504(a)(2), 51 F.R.D. 315, 368 (1971). It should here be noted that State Editions, Code of Evidence of California, §§ 1010, 1028, makes an exception to California’s statutory psychotherapist privilege. Only a psychiatrist or licensed psychologist maintains a privilege in criminal cases, while clinical social workers and the like are required to testify.

24 . The terms within this test should be understood as implying the limitations placed upon them in the earlier discussion in this opinion. There may, of course, be cases in the future which pose interpretative problems and which must be decided upon their particular merits. We do not reach the question of whether psychotherapeutic communications made to a medical practitioner who is not a psychiatrist are within the privilege.

25 . It is this point which accounts for the basic split between this opinion and the separate opinion of Justice Rabinowitz. Justice Erwin and I are unable to perceive how, through any semantic feat, Mrs. Henderson can be considered a psychotherapist, or how her contacts with Allred at the Langdon Clinic can constitute psychotherapy. It is of major significance that in her testimony Mrs. Henderson stated that she is not a psychotherapist.

26 . “This constitution is dedicated to the principles . . . that all persons are equal and entitled to equal . . . protection under the law . . . .” Alaska Const. art. I, § 1; see U.S.Const. amend XIV. § 1.

27 . In view of the widespread availability of social and health services for economically disadvantaged persons, we will not assume that such persons are absolutely deprived of psychiatric and psychological services by licensed personnel.