The psychotherapist-patient privilege, a California evidentiary privilege set forth in California 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
The psychotherapist-patient privilege (also known as the therapist-patient privilege) is one of several important privileges in California evidence law—along with the lawyer-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 is charged with Penal Code 261 rape. He has been seeing a psychoanalyst for years. He has told the therapist about his occasional violent sexual fantasies. But he is not required to tell police or prosecutors about the issues he has discussed with his therapist.
- A woman is accused of the murder of her husband. Prosecutors suspect that she killed him because he was abusive toward her. They would like to speak to a clinical social worker who consulted with the woman at a center devoted to helping domestic violence victims. But the social worker may not tell them anything about her sessions with the woman 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 his/her mental condition an issue—by pleading not guilty by reason of the California insanity defense, or claiming that s/he is 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 him/her dangerous to him/her-self, to someone else, or to someone else's property.6
In order to help you better understand the psychotherapist-patient privilege in California criminal law, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Under Evidence Code 1014 EC, “confidential communication” between a psychotherapist and a patient is considered “privileged.”7
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 s/he is not directly instructed to do so by the patient.9
Example: Carrie goes to see a psychiatrist at her HMO to get a prescription for antidepressants. She tells the psychiatrist that she is worried that her depression is causing her to neglect her young children.
Several years later, Carrie's children are removed from her home, and Carrie is charged with Penal Code 273a child endangerment for allegedly neglecting her children.
Because of the therapist-patient privilege, Carrie does not need to tell police or prosecutors anything about her visit to the psychiatrist.
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 doctor and a patient. This is because lawmakers recognize that it is important for people with mental or emotional problems to seek the help they need—without having to worry that they will incriminate themselves by doing so.”
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 is a high school student who suffers from anger management issues. Twice a month, he sees his school psychologist, who has a master's in Psychology, for a counseling session.
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 is worried about her boyfriend, who is a prominent drug dealer and has a violent “fast” lifestyle.
Stephanie visits Thelma, a psychic and Tarot card reader, once a week. Stephanie takes Thelma's advice very seriously and tells her all the details about her boyfriend and their relationship. Stephanie considers Thelma to be more or less her “therapist.”
Stephanie's boyfriend is arrested for sales of a controlled substance.
The prosecutor may call Thelma to testify at the boyfriend's trial about what Stephanie told her, and Thelma will have to do so. This is because Thelma is not a mental health professional covered by the therapist-patient privilege.
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: Gregory is charged with multiple forms of sex crimes against a child. If convicted, he could face a very long prison sentence.
Gregory hears from another inmate in jail about a sex offender treatment program. If he is accepted into the program, he could receive a much shorter prison sentence.
Gregory then writes a letter to Dr. Johnson, the psychologist who is the director of the program. In the letter, he confesses to committing the crimes he is charged with and states that he would like to enter the program.
The prosecution obtains a copy of that letter and introduces it into evidence.
When he wrote the letter, Gregory was not consulting Dr. Johnson for help with diagnosing or treating a mental condition. Instead, he contacted her because he wanted to enter her program to get a lighter prison sentence.
Therefore, the letter is not protected by the therapist-patient privilege—and may be used as evidence against Gregory.13
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 tells a marriage and family therapist about his tumultuous relationship with his violent, abusive father.
Clarence also writes a blog in which he discusses these same issues, often summarizing what he told the therapist at each appointment.
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: Irina is a recent immigrant from Russia. She is suffering from post-traumatic stress disorder related to political violence she witnessed as a child.
Irina consults with a psychiatrist about her emotional troubles. Her English is poor, so the psychiatrist's practice supplies a Russian translator who helps her at her appointment.
The therapist diagnoses Irina's problem and writes her a prescription for an anti-anxiety medication. He also informs her health insurance company of the diagnosis so that they will reimburse the cost of the appointment and 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.
But 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
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:
A criminal defendant may not claim the therapist-patient privilege when s/he has voluntarily made his/her mental state an issue in the criminal case.20
This will typically happen because the defendant either:
- Argues that s/he is not guilty by reason of insanity (i.e., the “insanity defense”);21 or
- Argues that s/he is not mentally competent to stand trial.22
In either of these cases, confidential communications between the defendant and any therapist s/he has consulted must be disclosed.23
Example: Izzy is homeless and mentally ill. He is charged with assault with a deadly weapon for trying to stab a stranger with a screwdriver.
Izzy and his criminal defense attorney argue that he is mentally incompetent and cannot be tried for a crime under California criminal law. The judge in his case orders a competency hearing.
In connection with the hearing, Izzy is examined by a court-appointed psychiatrist. A licensed clinical social worker who has treated him in the past is also asked to testify at the hearing.
The results of the examination, and the social worker's testimony, are not covered by the psychotherapist-patient privilege, because Izzy voluntarily made his mental state an issue in the case.
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: Tony is the leader of a criminal street gang. He has been seeing Jennifer, a psychiatrist, for several years.
One day Tony is desperate for a place to hide some guns that could be used as evidence of a gang killing. He makes an appointment with Jennifer and brings the guns to the appointment, asking her to conceal them for him.
This communication between Tony and Jennifer is not covered by the psychotherapist-patient privilege, because Tony is seeking help to avoid being charged with a crime.
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 him/her dangerous to him-/herself 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 him/her—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 is a pedophile who has been seeing Ricardo, a psychiatrist, to treat his pedophilia.
At one appointment, Carl tells Ricardo that he thinks he can no longer suppress his sexual desire for a 10-year-old girl who lives next door to him—and that he believes he will soon act on that desire.
Ricardo notifies the police and the girl's parents about what Carl has told him.
Several years later, Carl is charged with lewd acts with a child for molesting a different child.
In Carl's trial, Ricardo may testify about what Carl had said to him about his neighbor—because Ricardo previously revealed that information in order to protect the girl from harm.
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 Child Abuse & Neglect Reporting Law.30
This act requires mental health professionals to report to police any situation where they know or reasonably believe child abuse or neglect is taking place. And 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
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.
1 Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities. (“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.”)
See also Evidence Code 1013 EC – Holder of the [psychotherapist-patient] 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.”)
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.”)
2 Evidence Code 954 EC – Lawyer-client privilege [compare to psychotherapist-patient 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.”)
3 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.”)
4 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.”)
5 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.”)
6 Evidence Code 1024 EC – Exception [to the psychotherapist-patient privilege]: 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.”)
7 Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities, endnote 1, above.
8 See same.
9 Evidence Code 1015 EC. When psychotherapist required to claim [psychotherapist-patient] privilege, endnote 1, above.
10 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.
11 Evidence Code 1010 EC – Psychotherapist [definition for purposes of psychotherapist-patient privilege]. (“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.”)
12 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.”)
13 Based on the facts of People v. Cabral (1993) 12 Cal.App.4th 820.
14 Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities, endnote 1, above.
15 See same.
16 Evidence Code 1012 EC – Confidential communication between patient and psychotherapist. (“As used in this article [defining the psychotherapist-patient privilege], “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.”)
17 See same.
18 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.”)
19 See same.
20 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.
21 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.”)
22 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.”)
23 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.
24 Evidence Code 1018 EC – Exception [to the psychotherapist-patient privilege]: Crime or tort, endnote 5, above.
25 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.”)
26 Evidence Code 1024 EC – Exception [to the psychotherapist-patient privilege]: Patient dangerous to himself or others, endnote 6, above.
27 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].”)
28 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.”)
29 Evidence Code 1027 EC – Exception: Child under 16 victim of crime. (“There is no [psychotherapist-patient] 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.”)
30 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.”)
31 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 [exception to psychotherapist-patient privilege]. (“(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.
32 Evidence Code 912 EC – Waiver of [psychotherapist-patient] 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.”)
33 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 [of the therapist-patient privilege].” ( 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.)”)