According to the California Evidence Code, confidential communications between a patient and psychotherapist are protected by privilege. The privilege essentially provides that, with limited exceptions, a qualified person providing psychiatric treatment to a patient may not disclose any statements made by the patient during such treatment without the permission of the patient. In a recent California case, the government attempted to pierce this privilege by using information disclosed by a defendant to his psychotherapist in parole ordered therapy sessions to have the defendant civilly committed as a sexually violent predator.
At a young age, the defendant in this case contracted spinal meningitis, which resulted in serious intellectual and developmental disabilities. He lived with his mother into adulthood, and received Social Security disability benefits. The defendant suffered his first sex offense conviction at age 20 when he was convicted of annoying or molesting a five-year-old female victim. Two years later, he suffered a conviction for a lewd and lascivious act with a minor involving a seven-year-old victim. This conviction resulted in a short period of confinement in county jail and probation. The defendant was not alleged to have committed any additional sex offenses for the next seventeen years, until he was again convicted of lewd and lascivious acts with a minor at 39 years old. Similar to his previous crimes, the victim in this case was a four-year-old girl. This conviction resulted in an 11 year prison commitment. Just prior to the defendant’s release from prison, the Santa Clara County District Attorney’s Office attempted unsuccessfully to have the defendant civilly committed as a sexually violent predator.
Absent a civil commitment, the defendant was released on parole. During the next few years, the defendant was in and out of custody for a variety of parole violations, the majority of which involved alcohol and prohibited contact with minors. As a requirement of his parole, the defendant participated in psychotherapy with a certified psychologist assigned by Parole. The treatment consisted of group therapy and one-on-one therapy with the psychologist.
About two years after his initial release from prison, the defendant found himself in custody for another violation of parole. While he was in custody, the California Department of Corrections referred the defendant once again for screening as a potential sexually violent predator. At a subsequent hearing, the court found there was probable cause to believe the defendant met the requirements for a civil commitment and a trial was ordered.
In preparation for trail, the prosecution subpoenaed the records of the defendant’s psychotherapy. The defense attempted to squash the subpoena, but the trial court held for the prosecution and ordered the records released. Over continued defense objection, the prosecution used both the subpoenaed records and testimony of the psychologist who treated the defendant against him in the civil commitment hearing. Among other things, the psychologist testified that the defendant had admitted in therapy to being “very attracted to children, small children, and that especially when he was drinking that he found that he couldn’t really control himself and would have an overwhelming desire to touch them.” She also testified that the defendant had admitted to approximately 18 sex offenses with 16 victims throughout his teen and adult years.
The defendant was committed as a sexually violent predator, and the defense appealed. Their primary argument was that the treatment records and communications between the defendant and his psychologist should have been protected by the psychotherapist-patient privilege. The government provided two theories as to why they believed the privilege did not apply.
The prosecution first argued the records and testimony were not protected by privilege because California Evidence Code § 1012 permits the release of such information for “accomplishment of the purpose for which the psychotherapist is consulted.” They insisted the purpose of the defendant’s treatment was to ensure his compliance with terms and conditions of parole and the safety of the public. Access to the otherwise privileged information from his therapy sessions would therefore be necessary to monitor his compliance. The court upheld the government’s right to some minimally intrusive information, such as whether the defendant is attending his sessions and whether he is compliant with treatment. However, the court held the government’s right to that information is not a waiver of the psychotherapist-patient privilege as the prosecution had contended. Release of the information in its entirety was therefore not proper under this theory.
The prosecution next claimed they should be allowed access to the privileged information under the dangerous patient exception. The dangerous patient exception states, “There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” (CA Evidence Code § 1024) The court also rejected this theory, noting that the prosecution failed to offer any proof at the trial court level that the therapy records or testimony of the psychotherapist would show the defendant presented a danger. Instead the trial court relied solely on the district attorney’s conclusory offer of proof that such information existed. The court further noted that the psychotherapist herself, assumedly aware of the dangerous patient exception, did not consider it necessary to disclose any confidential communications to the prosecution.
After determining the trial court erred in disclosing the defendant’s psychological records, the Court of Appeals concluded the error was prejudicial and ordered the civil commitment reversed. The prosecution appealed the California Supreme Court. The California Supreme Court agreed that the trial court had erred in ordering disclosure of the confidential information. Unfortunately for the defendant in this case however, they disagreed with the prejudicial error standard used by the Court of Appeals. The Supreme Court held the error was not prejudicial and that the civil commitment would stand. While the Supreme Court’s decision did not offer much assistance for this defendant, it will serve to protect the sanctity of the psychotherapist-patient privilege for future defendants.
Latest posts by Domenic Lombardo (see all)
- Criminal Defense Lawyer’s Club of San Diego, President’s Column: New California Criminal Defense Laws - March 19, 2018
- Proposition 64: Bountiful Harvest of Relief to Many Convicted of Marijuana Offenses - December 30, 2016
- Government Planes Harvesting Cell Phone Communications over San Diego? - May 6, 2016