Chapter 4 - §10. Psychotherapist-patient privilege

• Jurisdiction: United States

§10. Psychotherapist-patient privilege

§10.1. Overview. Generally, a patient, whether or not a party to a proceeding, has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication between the patient and a psychotherapist. Evid. C. §1014; see People v. Dworak (2021) 11 Cal.5th 881, 912. The privilege is based on the public policy "supporting effective treatment of mental illness and . . . the consequent public importance of safeguarding the confidential character of psychotherapeutic communication." Tarasoff v. Regents of the Univ. of Cal. (1976) 17 Cal.3d 425, 440; see Mathews v. Becerra (2019) 8 Cal.5th 756, 770-71; In re Lifschutz (1970) 2 Cal.3d 415, 422. Thus, for policy reasons, the privilege should be broadly construed in favor of the patient. People v. Nieves (2021) 11 Cal.5th 404, 432; People v. Ka Yang (3d Dist.2021) 67 Cal.App.5th 1, 47; Fish v. Superior Ct. (4th Dist.2019) 42 Cal.App.5th 811, 818.

Note
The psychotherapist-patient privilege applies in both criminal and civil proceedings, while the physician-patient privilege applies only in civil proceedings. Fish, 42 Cal.App.5th at 817; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1190; see Evid. C. §998; People v. Cage (2007) 40 Cal.4th 965, 987 n.18. The rationale for this distinction is that psychotherapeutic treatment will often be refused by a patient if he knows there is a danger that the psychotherapist could be forced to reveal the content of their discussions in a criminal trial. 7 Cal. Law Revision Comm'n Rep. (1965), p. 1190. The purpose of the physician-patient privilege, on the other hand, is to insulate the patient from the humiliation and embarrassment that may result from the disclosure of his malady and encourage full disclosure to the physician of information relevant to diagnosis and treatment. Snibbe v. Superior Ct. (2d Dist.2014) 224 Cal.App.4th 184, 191-92. Thus, the purpose of the physician-patient privilege is to protect the patient, not shield the criminal defendant from having to disclose relevant material records. See Brillantes v. Superior Ct. (2d Dist.1996) 51 Cal.App.4th 323, 339. For this reason, the recognition of the privilege in criminal proceedings would not serve any legitimate purpose. 2 Witkin, California Evidence (5th ed.), Witnesses §211.

§10.2. Elements of psychotherapist-patient privilege. For the psychotherapist-patient privilege to apply, there must be (1) a psychotherapist-patient relationship and (2) a confidential communication.

1. Psychotherapist-patient relationship. The psychotherapist-patient relationship is established when the patient consults with or is examined by a psychotherapist for diagnosis or treatment of his mental or emotional condition or for the purpose of scientific research on mental or emotional problems. Evid. C. §1011.

(1) Psychotherapist defined. A "psychotherapist" is defined as a person who is, or is reasonably believed by the patient to be, one of the following:

(a) A person authorized to practice medicine in any state or nation who devotes, or is reasonably believed by the patient to devote, a substantial portion of her time to the practice of psychiatry. Evid. C. §1010(a).

(b) A person licensed as a psychologist under Bus. & Prof. C. §2900 et seq. Evid. C. §1010(b).

(c) A person licensed as a clinical social worker engaged in applied psychotherapy of a nonmedical nature. Evid. C. §1010(c); see Bus. & Prof. C. §4991 et seq.

(d) A person serving as a school psychologist holding a state-issued credential authorizing that service. Evid. C. §1010(d).

(e) A person licensed as a marriage and family therapist under Bus. & Prof. C. §4980 et seq. Evid. C. §1010(e).

(f) A person registered as a psychological associate working under the supervision of a licensed psychologist required under Bus. & Prof. C. §2913, or a person registered as an associate marriage and family therapist under the supervision of a licensed marriage and family therapist, a licensed clinical social worker, a licensed professional clinical counselor, a licensed psychologist, or a licensed physician and surgeon certified in psychiatry as specified in Bus. & Prof. C. §4980.44. Evid. C. §1010(f).

(g) A person registered as an associate clinical social worker under the supervision as specified in Bus. & Prof. C. §4996.23. Evid. C. §1010(g).

(h) A psychological intern as defined in Bus. & Prof. C. §2911 under the primary supervision of a licensed psychologist. Evid. C. §1010(h).

(i) A trainee (defined under Bus. & Prof. C. §4980.03(c)) fulfilling their supervised practicum required by Bus. & Prof. C. §4980.36(d)(1)(B) or §4980.37(c) and supervised by a licensed psychologist, a board-certified psychiatrist, a licensed clinical social worker, a licensed marriage and family therapist, or a licensed professional clinical counselor. Evid. C. §1010(i).

(j) A person licensed as a registered nurse under Bus. & Prof. C. §2700 et seq. who has a master's degree in psychiatric-mental-health nursing and is listed as a psychiatric-mental-health nurse by the Board of Registered Nursing. Evid. C. §1010(j).

(k) An advanced-practice registered nurse who is certified as a clinical nurse specialist under Bus. & Prof. C. §2838 et seq. and who participates in expert clinical practice in the specialty of psychiatric-mental-health nursing. Evid. C. §1010(k).

(l) A person providing mental-health treatment or counseling services as authorized by Fam. C. §6924. Evid. C. §1010(l).

(m) A person licensed as a professional clinical counselor under Bus. & Prof. C. §4999.10 et seq. Evid. C. §1010(m).

(n) A person registered as an associate professional clinical counselor who is under the supervision of a licensed professional clinical counselor, a licensed marriage and family therapist, a licensed clinical social worker, a licensed psychologist, or a licensed physician and surgeon certified in psychiatry as specified in Bus. & Prof. C. §§4999.42 to 4999.48. Evid. C. §1010(n).

(o) A clinical-counselor trainee as defined under Bus. & Prof. C. §4999.12(g), fulfilling their supervised practicum as required by Bus. & Prof. C. §4999.32(c)(3) or §4999.33(c)(3) and supervised by a licensed psychologist, a board-certified psychiatrist, a licensed clinical social worker, a licensed marriage and family therapist, or a licensed professional clinical counselor. Evid. C. §1010(o).

(p) An educational psychologist licensed under Bus. & Prof. C. §4989.10 et seq. Evid. C. §1010.5.

(q) A psychological corporation, marriage and family therapist corporation, licensed clinical social workers corporation, or professional clinical counselor corporation, as well as psychotherapists employed by those corporations to render services to patients. Evid. C. §1014.

(2) Patient defined. A "patient" is defined as any person who (1) consults with a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment for any mental or emotional condition or (2) submits to an examination to assess his mental or emotional condition for the benefit or purpose of scientific research on mental or emotional problems. Evid. C. §1011; see, e.g., In re A.C. (2d Dist.2019) 37 Cal.App.5th 262, 266 (privilege did not apply because witness testified she was not acting as D's therapist). For the privilege to apply, the patient must demonstrate that the dominant purpose of the communication was to obtain treatment. E.g., People v. Cabral (5th Dist.1993) 12 Cal.App.4th 820, 828 (privilege inapplicable because D's stated purpose was to avoid jail and not principally to secure treatment). However, the dominant-purpose test articulated by the court in Cabral has been disfavored, and the psychotherapist-patient privilege has been deemed applicable under circumstances where a defendant participates in psychotherapy as a condition of probation even though the avoidance of incarceration is the principal motivation for participation. Story v. Superior Ct. (6th Dist.2003) 109 Cal.App.4th 1007, 1015-16; see In re Clergy Cases (2d Dist.2010) 188 Cal.App.4th 1224, 1242 (motivation for seeking treatment is immaterial to the privilege; it makes no difference if treatment was sought because ordered to do so).

2. Confidential communication. In the context of the psychotherapist-patient privilege, a confidential communication is defined as information, including information obtained through patient examination, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means that does not disclose the information to any third persons other than those expressly permitted by Evid. C. §1012. Because the underlying rationale for the privilege is to preserve the patient's right to privacy and foster psychotherapeutic treatment for the patient's mental and emotional condition, once the communication between the patient and psychotherapist ceases to be confidential, the privilege disappears. People v. Clark (1990) 50 Cal.3d 583, 620.

(1) Presumption of confidentiality. A communication between a psychotherapist and patient is presumed to have been made in confidence. Evid. C. §917(a); see In re A.C., 37 Cal.App.5th at 266. The...