Evidence Code § 1014 – Psychotherapist-Patient Privilege in California

The psychotherapist-patient privilege, a California evidentiary privilege set forth in Evidence Code § 1014, provides that:

1. You have the right not to disclose any confidential communications between you and your psychotherapist in a California criminal jury trial; and
2. 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

Examples

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.

Exceptions

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.

These include:

1. 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
2. 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
3. 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?
  • 1.1. Definition of “psychotherapist”
  • 1.2. Definition of “patient”
  • 1.3. Definition of “confidential communication”
• 2. Are there exceptions to the privilege?
  • 2.1. Defendant raises issue of mental state
  • 2.2. Use of therapist services for criminal wrongdoing
  • 2.3. Disclosure of dangerous patient
  • 2.4. Child crime victim; child abuse or neglect
• 3. Can the attorney-client privilege be waived?
• Additional reading

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

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.¹⁰

These include:

• 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

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 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

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:

1. Argues that they are not guilty by reason of insanity (for example, the “insanity defense”);²¹ or
2. 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

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:

1. Commit a crime or tort, or
2. 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:

1. The patient’s mental or emotional condition makes them dangerous to themself or to the person or property of someone else; and
2. 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

2.4. Child crime victim; child abuse or neglect

The psychotherapist-patient privilege does not prevent psychotherapists from disclosing certain confidential communications if:

1. The patient is a child under the age of sixteen (16); and
2. 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

Additional reading

For more in-depth information, refer to these scholarly articles:

• Tort Law – Psychotherapist-Patient Privilege – Patient’s Dangerous Condition – Confidentiality – Legal Duty to Warn Potential Victim – Tarasoff v. Regents of University of California – Akron Law Review.
• The Patient-Litigant Exception in Psychotherapist-Patient Privilege Cases: New Considerations for Alaska and California since In Re Lifschutz – UCLA Alaska Law Review.
• Potential erosion of psychotherapist–patient privilege beyond California: dangers of “criminalizing” Tarasoff – Behavior Sciences and the Law.
• Dangerous Patients: An Exception to the Federal Psychotherapist-Patient Privilege – Kentucky Law Journal.
• Privilege Study: An Empirical Examination of the Psychotherapist–Patient Privilege, The – North Carolina Law Review.

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