The psychotherapist-patient privilege, a California evidentiary privilege set forth in Evidence Code § 1014, provides that:
- You have the right not to disclose any confidential communications between you and your psychotherapist in a California criminal jury trial; and
- You have the right to prevent your therapist from disclosing any such confidential communications.1
In this article, we will quote the full language of the code section, and then provide an in-depth legal analysis. The Evidence Code section reads as follows:
1014. Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by:
(a) The holder of the privilege.
(b) A person who is authorized to claim the privilege by the holder of the privilege.
(c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.
The relationship of a psychotherapist and patient shall exist between a psychological corporation as defined in Article 9 (commencing with Section 2995) of Chapter 6.6 of Division 2 of the Business and Professions Code, a marriage and family therapist corporation as defined in Article 6 (commencing with Section 4987.5) of Chapter 13 of Division 2 of the Business and Professions Code, a licensed clinical social workers corporation as defined in Article 5 (commencing with Section 4998) of Chapter 14 of Division 2 of the Business and Professions Code, or a professional clinical counselor corporation as defined in Article 7 (commencing with Section 4999.123) of Chapter 16 of Division 2 of the Business and Professions Code, and the patient to whom it renders professional services, as well as between those patients and psychotherapists employed by those corporations to render services to those patients. The word “persons” as used in this subdivision includes partnerships, corporations, limited liability companies, associations, and other groups and entities.
The psychotherapist-patient privilege (also known as the therapist-patient privilege) is one of several important privileges in California evidence law—along with the attorney-client privilege2 and the marital/spousal privilege.3
Here are some examples of how the psychotherapist-patient privilege might work in a California criminal case:
- A man charged with rape told his long-time therapist about his occasional violent sexual fantasies. He is not required to tell police or prosecutors about the issues he has discussed with his therapist.
- A woman is charged with killing her husband, who was allegedly abusive towards her. The woman’s clinical social worker, who counseled her at a domestic violence shelter, may not tell prosecutors anything about their sessions without the woman’s permission.
The California psychotherapist-patient privilege is not unlimited. There are certain exceptions to the privilege that allow the disclosure of psychotherapist-patient communications in court.
- Cases where the defendant chooses to make their mental condition an issue—by pleading not guilty by reason of the California insanity defense, or claiming that they are not competent to stand trial;4
- Cases where the defendant sought or used the psychotherapist’s services to enable anyone to commit a crime, or to escape being caught or arrested after committing a crime;5 and
- Situations where the psychotherapist reasonably believes that the patient’s mental condition makes them dangerous to themself, to someone else, or to someone else’s property.6
In order to help you better understand the psychotherapist-patient privilege, our California criminal defense attorneys will address the following:
- 1. What is the psychotherapist-patient privilege in California?
- 2. Are there exceptions to the privilege?
- 3. Can the attorney-client privilege be waived?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. What is the psychotherapist-patient privilege in California?
Under Evidence Code 1014 EC, “confidential communication” between a psychotherapist and a patient is considered “privileged.”7
As a general rule, this means that the patient has the right both
- to refuse to disclose, and
- to prevent someone else (usually the therapist) from disclosing,
the content of that confidential communication in a California court proceeding.8
In addition, the psychotherapist is required to “claim the privilege”—that is, refuse to disclose the confidential information—even when they are not directly instructed to do so by the patient.9
Example: Carrie told her psychiatrist she was worried that her depression is causing her to neglect her young children. Soon Carrie is charged with child endangerment of her children.
Because of the therapist-patient privilege, Carrie does not need to tell prosecutors anything about her therapy sessions. Moreover, neither the psychiatrist (nor the HMO) is allowed to disclose anything about her visit.
According to West Covina criminal defense attorney Nicole Valera10:
“California law provides more protection for communications between a psychotherapist and a patient than it does for communications between an ordinary health care provider and a patient. This is because lawmakers recognize that it is important for people with mental illness or emotional problems to seek the help they need—without having to worry that they will incriminate themselves by doing so.”
1.1. Definition of “psychotherapist”
The legal definition of “psychotherapist” for purposes of the patient-psychotherapist privilege covers a wide range of mental health professionals.
- Psychiatrists—that is, licensed doctors who devote a substantial portion of their time to practicing psychiatry, or who are reasonably believed by the patient to devote a substantial portion of their time to psychiatric practice;
- Licensed psychologists;
- Licensed clinical social workers engaged in applied non-medical psychotherapy;
- School psychologists who hold credentials authorizing them to perform that role;
- Licensed marriage and family therapists (MFTs);
- Psychological assistants, interns, trainee social workers, etc., working under the supervision of licensed therapists;
- Registered nurses with master’s degrees in mental health nursing who are listed as mental health nurses by the state board; and
- Licensed professional clinical counselors.11
Example: Randy sees his school psychologist about anger-management. The police begin investigating Randy and several of his friends on the suspicion that the boys have engaged in criminal vandalism.
Randy does not need to tell the police anything that he told the school psychologist in their counseling sessions. The psychologist also may not disclose any of this information.
Example: Stephanie confides in her psychic about her drug-dealer boyfriend, who then gets arrested for selling pot.
The prosecutor may ask the psychic to testify at the boyfriend’s trial about what Stephanie told her, and the psychic will have to do so. This is because the psychic is not a mental health professional covered by the therapist-patient privilege.
1.2. Definition of “patient”
Under the California Evidence Code, a “patient” is defined as someone who consults or submits to an examination by a psychotherapist, for the purpose of
- diagnosing a mental or emotional condition,
- treating a mental or emotional condition, or
- assisting in scientific research on a mental or emotional condition.12
Example: While awaiting trial for rape, Gregory writes a letter to the psychologist in charge of a sex offender treatment program. In the letter, he confesses to committing the crimes he is charged with and states that he would like to enter the program.
This letter is not protected by the therapist-patient privilege because Gregory was not consulting the psychologist for help with diagnosing or treating a mental condition. Instead, the purpose was to enter the program to get a lighter prison sentence.13
1.3. Definition of “confidential communication”
The psychotherapist-patient privilege only protects “confidential communication” between a patient and a psychotherapist.14
This means that it only covers information that is transmitted as part of the therapeutic relationship—including information obtained from
- the therapist’s examination of the patient,
- the therapist’s diagnosis, and
- the advice given by the therapist.15
This also means that the privilege only covers communications made in confidence—meaning that they are not disclosed to third persons outside of that relationship.16
Example: Clarence writes a blog documenting what he tells his therapist about his tumultuous relationship with his violent, abusive father. Because Clarence broadcasts the content of his therapy appointments to the world, those communications are not covered by the psychotherapist-patient privilege.
However, information is still considered confidential if it is conveyed to
- people who are present at the therapeutic consultation to further the interests of the patient, or
- people to whom disclosure of the confidence is necessary to accomplish the purpose for which the psychotherapist is consulted.17
Example: A doctor diagnoses Irina – a non-English-speaking immigrant – with anxiety and prescribes her medication. The translator, the pharmacist who fills the prescription, and Irina’s health insurance company will all know something about her communication with the psychiatrist.
Though it is still a “confidential communication” to which the psychotherapist-patient privilege applies. That is because all of these people were involved in supporting Irina’s treatment.
In addition, California courts have held that communications during “group therapy”—in which multiple patients receive therapy from a psychotherapist at the same time—are covered under the therapist-patient privilege.18
This is because the presence of other patients is considered to be a vital part of the therapy.19
2. Are there exceptions to the privilege?
There are several common situations in California criminal law in which the psychotherapist-patient privilege does not apply—and communications with a therapist may be disclosed. These are:
2.1. Defendant raises issue of mental state
A criminal defendant may not claim the therapist-patient privilege when they have voluntarily made their mental state an issue in the criminal case.20
This will typically happen because the defendant either:
- Argues that they are not guilty by reason of insanity (for example, the “insanity defense”);21 or
- Argues that they are not mentally competent to stand trial.22
In either of these cases, confidential communications between the defendant and any therapist they have consulted must be disclosed.23
Example: After being charged with assault, Izzy claims she is mentally incompetent. The prosecution asks her court-appointed psychiatrist and long-time social worker to testify at the competency hearing.
The results of the competency examination, and the social worker’s testimony, are not covered by the psychotherapist-patient privilege because Izzy voluntarily made her mental state an issue in the case.
2.2. Use of therapist services for criminal wrongdoing
Confidential communications between a therapist and a patient are not protected by the therapist-patient privilege if the patient sought the services of the therapist in order to:
- Commit a crime or tort, or
- Escape detection or arrest after committing a crime or tort.24
(A “tort” is a wrongful act done to someone else, for which the victim can claim damages in a civil court proceeding.25)
Example: Gang-leader Tony asks his psychiatrist to hide his gun. This communication between Tony and the psychiatrist is not covered by the psychotherapist-patient privilege because Tony is seeking help to avoid being charged with a crime.
2.3. Disclosure of dangerous patient
The psychotherapist-patient privilege also will not apply if the therapist has reasonable cause to believe that:
- The patient’s mental or emotional condition makes them dangerous to themself or to the person or property of someone else; and
- Disclosure of the communication is necessary to protect against that danger.26
Where this is the case, the therapist has the right to reveal what the patient told them—even if there is no criminal case pending.
In fact, under California law therapists are required to warn the intended victim or police if they reasonably believe that their patient is about to harm someone else.27
And once that information has been revealed, it may be introduced into a defendant’s criminal trial.28
Example: Carl tells his psychiatrist that he thinks he can no longer suppress his sexual desire for his 10-year-old neighbor. The psychiatrist notifies the police and the girl’s parents about what Carl has told him.
Several years later, Carl is charged with molesting a different child. In Carl’s trial, the psychiatrist may testify about what Carl had said to him about his neighbor because he previously revealed that information in order to protect the child from harm.
2.4. Child crime victim; child abuse or neglect
There are several additional exceptions to the psychotherapist-patient privilege that come up in California criminal cases.
First, the privilege does not prevent psychotherapists from disclosing certain confidential communications if:
- The patient is a child under the age of sixteen (16); and
- The psychotherapist has reasonable cause to believe that the patient has been a victim of a crime and disclosure of the communication is in the child’s best interest.29
Also, the therapist-patient privilege will not apply to information that mental health professionals are required to report under California’s Mandatory Reporting Laws.30
This act requires mental health professionals to report to police any situation where they know or reasonably believe 273d PC child abuse or neglect is taking place. They do not have to wait for a court order or subpoena first.
Plus thanks to AB 1775, a law passed in 2014, therapists are also required to report any clients whom they know or reasonably suspect have viewed or downloaded child pornography.31
3. Can the attorney-client privilege be waived?
Like other evidentiary privileges in California law, the psychotherapist-patient privilege can be waived by the patient. This means that the patient can make the privilege disappear, by either
- disclosing a significant part of the privileged communication, or
- consenting to the disclosure of the privileged communication by anyone else.32
However, you will not necessarily waive the therapist-patient privilege for the content of your communication with a therapist by merely disclosing
- the fact that you are seeing that therapist, or
- the purpose of your visits to the therapist.33
Call us for help…
If you have additional questions about the psychotherapist-patient privilege in California, or you would like to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities. See also Evidence Code 1013 EC – Holder of the privilege. (“As used in this article, “holder of the privilege” means: (a) The patient when he has no guardian or conservator. (b) A guardian or conservator of the patient when the patient has a guardian or conservator. (c) The personal representative of the patient if the patient is dead [deceased patient].”) See also Evidence Code 1015 EC – § 1015. When psychotherapist required to claim [psychotherapist-patient] privilege. (“The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.”). See also Mathews v. Becerra, (2019) 8 Cal. 5th 756, 455 P.3d 277.
- Evidence Code 954 EC – Lawyer-client privilege. (“Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”)
- Evidence Code 970 EC – Spouse’s privilege not to testify against spouse [compare to psychotherapist-patient privilege]. (“Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.”) See also Evidence Code 980 EC – Confidential marital communication privilege [compare to psychotherapist-patient privilege]. (“Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.”)
- Evidence Code 1016 EC – Exception [to the psychotherapist-patient privilege]: Patient-litigant exception. (“There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient; (b) Any party claiming through or under the patient; (c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or (d) The plaintiff in an action brought under Section 376or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.”) Evidence Code 1023 EC – Exception [to the psychotherapist-patient privilege]: Proceeding to determine sanity of criminal defendant. (“There is no privilege under this article in a proceeding under Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 of the Penal Code initiated at the request of the defendant in a criminal action to determine his sanity.”)
- Evidence Code 1018 EC – Exception [to the psychotherapist-patient privilege]: Crime or tort. (“There is no privilege under this article if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.”)
- Evidence Code 1024 EC – Exception: Patient dangerous to himself or others. (“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.”)
- Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities, endnote 1, above.
- See same.
- Evidence Code 1015 EC. When psychotherapist required to claim [psychotherapist-patient] privilege, endnote 1, above. See also Jaffee v. Redmond, (1996) 518 U.S. 1. See also United States v. Romo, (9th Cir. 2005) 413 F.3d 1044.
- West Covina criminal defense attorney Nicole Valera was a public defender with the Los Angeles County Public Defender’s Office before she began working as a private criminal defense lawyer. She handles the gamut of felony and misdemeanor cases and is experienced with all aspects of California evidence law, including evidentiary privilege. She represents clients at courthouses throughout the Los Angeles County and San Bernardino County court systems.
- Evidence Code 1010 EC – Psychotherapist defintion. (“As used in this article, “psychotherapist” means a person who is, or is reasonably believed by the patient to be: (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 his or her time to the practice of psychiatry. (b) A person licensed as a psychologist under Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code. (c) A person licensed as a clinical social worker under Article 4 (commencing with Section 4996) of Chapter 14 of Division 2 of the Business and Professions Code, when he or she is engaged in applied psychotherapy of a nonmedical nature. (d) A person who is serving as a school psychologist and holds a credential authorizing that service issued by the state. (e) A person licensed as a marriage and family therapist under Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code. (f) A person registered as a psychological assistant who is under the supervision of a licensed psychologist or board certified psychiatrist as required by Section 2913 of the Business and Professions Code, or a person registered as a marriage and family therapist intern who is under the supervision of 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 Section 4980.44 of the Business and Professions Code. (g) A person registered as an associate clinical social worker who is under supervision as specified in Section 4996.23 of the Business and Professions Code. (h) A person exempt from the Psychology Licensing Law pursuant to subdivision (d) of Section 2909 of the Business and Professions Code who is under the supervision of a licensed psychologist or board certified psychiatrist. (i) A psychological intern as defined in Section 2911 of the Business and Professions Code who is under the supervision of a licensed psychologist or board certified psychiatrist. (j) A trainee, as defined in subdivision (c) of Section 4980.03 of the Business and Professions Code, who is fulfilling his or her supervised practicum required by subparagraph (B) of paragraph (1) of subdivision (d) of Section 4980.36 of, or subdivision (c) of Section 4980.37 of, the Business and Professions Code and is 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. (k) A person licensed as a registered nurse pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code, who possesses a master’s degree in psychiatric-mental health nursing and is listed as a psychiatric-mental health nurse by the Board of Registered Nursing. (l) An advanced practice registered nurse who is certified as a clinical nurse specialist pursuant to Article 9 (commencing with Section 2838) of Chapter 6 of Division 2 of the Business and Professions Code and who participates in expert clinical practice in the specialty of psychiatric-mental health nursing. (m) A person rendering mental health treatment or counseling services as authorized pursuant to Section 6924 of the Family Code. (n) A person licensed as a professional clinical counselor under Chapter 16 (commencing with Section 4999.10) of Division 2 of the Business and Professions Code. (o) A person registered as a clinical counselor intern 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 Sections 4999.42to 4999.46, inclusive, of the Business and Professions Code. (p) A clinical counselor trainee, as defined in subdivision (g) of Section 4999.12 of the Business and Professions Code, who is fulfilling his or her supervised practicum required by paragraph (3) of subdivision (c) of Section 4999.32 of, or paragraph (3) of subdivision (c) of Section 4999.33 of, the Business and Professions Code, and is 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.”)
- Evidence Code 1011 EC – Patient [definition for purposes of therapist-patient privilege]. (“As used in this article, “patient” means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.”)
- Based on the facts of People v. Cabral (1993) 12 Cal.App.4th 820.
- Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities, endnote 1, above.
- See same.
- Evidence Code 1012 EC – Confidential communication between patient and psychotherapist. (“As used in this article, “confidential communication between patient and psychotherapist” means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.”)
- See same.
- Farrell L. v. Superior Court (1988) 203 Cal.App.3d 521, 527. (“The language of Evidence Code section 1012 plainly indicates that communications made by patients to persons who are present to further the interests of the patient comes within the privilege. “Group therapy” is designed to provide comfort and revelation to the patient who shares similar experiences and/or difficulties with other like persons within the group. The presence of each person is for the benefit of the others, including the witness/patient, and is designed to facilitate the patient’s treatment. Communications such as these, when made in confidence, should not operate to destroy the [psychotherapist-patient] privilege.”)
- See same.
- Evidence Code 1016 EC – Exception [to the psychotherapist-patient privilege]: Patient-litigant exception, endnote 4, above. Evidence Code 1023 EC – Exception [to the psychotherapist-patient privilege]: Proceeding to determine sanity of criminal defendant, endnote 4, above.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 3450 – Insanity: Determination, Effect of Verdict [California insanity defense; exception to therapist-patient privilege]. (“If, after considering all the evidence, all twelve of you conclude the defendant has proved that it is more likely than not that (he/she) was legally insane when (he/she) committed the crime[s], you must return a verdict of not guilty by reason of insanity.”)
- Penal Code 1367 PC – Mentally incompetent persons; trial or punishment prohibited; application of specified sections [exception to psychotherapist-patient privilege]. (“(a) A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”)
- Evidence Code 1016 EC – Exception [to the psychotherapist-patient privilege]: Patient-litigant exception, endnote 4, above.Evidence Code 1023 EC – Exception [to the psychotherapist-patient privilege]: Proceeding to determine sanity of criminal defendant, endnote 4, above.
- Evidence Code 1018 EC – Exception [to the psychotherapist-patient privilege]: Crime or tort, endnote 5, above.
- Black’s Law Dictionary (9th ed. 2009), tort. (“1. A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.”)
- Evidence Code 1024 EC – Exception [to the psychotherapist-patient privilege]: Patient dangerous to himself or others, endnote 6, above.
- Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 431. (“When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances [regardless of the psychotherapist-patient privilege].”)
- People v. Clark (1990) 50 Cal.3d 583, 619-20. (“Defendant’s argument that the [therapist-patient] privilege was not abrogated by Evidence Code section 1024, because the section applies “only if the patient is presently dangerous and the therapist’s testimony is necessary to prevent the danger,” misses the point. (10) A psychotherapist has a professional duty to maintain the confidential character of communications made to him by his patient during the course of the relationship, but when it is necessary to disclose confidential information to avert danger to others the therapist must do so. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 441 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) (11) The purpose underlying Evidence Code section 1014 is not to prevent the use of a defendant’s statements against him in legal proceedings. It exists to prevent the unnecessary disclosure of statements made in confidence in the course of a privileged communication with a therapist and thereby to facilitate treatment. (17 Cal.3d at pp. 440-442.) If the statements have been *620 revealed to third persons in a communication that is not itself privileged, however, they are no longer confidential. (Cf. Roberts v. Superior Court (1973) 9 Cal.3d 330, 341 [107 Cal.Rptr. 309, 508 P.2d 309] [psychotherapist exchanged patient’s records with other physicians after patient had actively asserted privilege; disclosure did not waive privilege].) The question is not whether the psychotherapist-patient privilege has been waived or the exception that would permit compelled disclosure in a legal proceeding applies, but whether the privilege may be claimed at all once the communication is no longer confidential. Whether the psychotherapist “reasonably believes” (Evid. Code, § 1024) that revelation of the communication is necessary also becomes irrelevant once the communication has lost its confidential status. The reason for the privilege – protecting the patient’s right to privacy and promoting the therapeutic relationship – and thus the privilege itself, disappear once the communication is no longer confidential.”)
- Evidence Code 1027 EC – Exception: Child under 16 victim of crime. (“There is no privilege under this article if all of the following circumstances exist: (a) The patient is a child under the age of 16. (b) The psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child.”)
- Penal Code 11171.2 PC – X-rays of child; physician- or psychotherapist-patient privilege. (“(b) Neither the physician-patient privilege nor the psychotherapist-patient privilege applies to information reported pursuant to this article in any court proceeding or administrative hearing.”)
- See Penal Code 11166 PC – Report of child abuse or neglect; mandatory reporters; reasonable suspicion defined; form of report; criminal liability for failure to report; investigation; other reporters; joint reports; retaliation prohibited; report by county probation or welfare department, or law enforcement agency, to investigatory agency and district attorney. (“(a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report by telephone to the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or electronically transmit a written followup report within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident.”) See also Penal Code 11166 PC — Sexual abuse defined.
- Evidence Code 912 EC – Waiver of privilege. (“(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor- victim privilege) is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.”)
- San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092-93. (“Under Evidence Code section 912, subdivision (a), a waiver requires disclosure “of a significant part of the communication” and thus the Supreme Court has “made it clear that the mere disclosure of the existence of the psychotherapist-patient relationship does not reveal a significant part of the communication and thus does not constitute a waiver.” ( Roberts v. Superior Court, supra, 9 Cal.3d at p. 340.) Even when a patient has revealed the purpose of psychiatric treatment, no waiver of the privilege occurs. ( Ibid.) “There is a vast difference between disclosure of a general description of the *1093 object of … psychotherapeutic treatment, and the disclosure of all or a part of the patient’s actual communications during psychotherapy.” ( Ibid.)”)