Psychotherapist-Patient Privilege in California
Introduction:
The concept of privilege is to prohibit another person from obtaining evidence of the communication in any form from a source of information that is covered by the privilege. In the United States, such privileges include communications between a lawyer and client, between a doctor and patient, between a minister and congregant, and between a husband and wife. All such privileges enable a person to prohibit disclosure of the privileged information in court and any other proceeding or to prohibit the person from revealing it publicly in any manner. It is not the choice of the professional or spouse receiving the information as to whether to invoke the privilege. The privilege belongs to the person making the communication.
All privileges have limitations and requirements. As an example, communication with one’s attorney in a public area that is obviously overheard is not privileged since it is presumed the person so communicating must have realized that the communication was not in a protected setting. There is no privilege even with one’s attorney if one indicates one is going to commit a crime. Each privilege must be studied closely to know where and how it applies.
One particular privilege is the privilege between a psychotherapist and the patient. Note this is not the same as the doctor-patient privilege since the therapist may not be a doctor.
This article shall discuss the requirements of this particular privilege.
The Basic Law:
This privilege applies to patients who seek treatment for mental or emotional conditions including treatment for drug or alcohol addiction.
In California, under Evidence Code 1014, it protects all confidential information which is defined as all such communication between a psychotherapist and a patient. The patient has the following rights:
to refuse to disclose the contents of any such communication, and
to prevent someone else (usually the therapist) from disclosing the content of that confidential communication in a California court proceeding.
Note that the psychotherapist is required to “claim the privilege”, that is, refuse to disclose confidential information, even when they are not directly instructed to do so by the patient.
Who is a psychotherapist?
The legal definition of “psychotherapist” for purposes of the patient-psychotherapist privilege covers a wide range of mental health professionals including but not limited to:
Psychiatrists: 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;
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.
While California has powerful protections, so does the Federal government. The Federal Rules of Evidence did, indirectly, recognize a psychotherapist-patient privilege since all fifty states recognize some sort of equivalent privilege.
Who is a “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.
It is critical to carefully comprehend this requirement. Assume X is in detention for child abuse and hears of a program that is an alternative to prison and writes a letter to the psychiatrist running the program asking to be admitted and confessing his crime. That communication was not protected by the therapist-patient privilege because X was not consulting the psychologist for help with diagnosing or treating a mental condition. Instead, the purpose was to enter the alternative program. The psychotherapist-patient privilege only protects “confidential communication” between a patient and a psychotherapist, that is 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.
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.
Examples:
Note the broad nature of the privilege and the many persons it applies to, from clinical counselors to nurses to school psychologists. This remarkably broad class of persons was specifically indicated since the legislature wanted troubled persons to be able to seek effective help without worrying about self-incrimination. As examples:
1. Example: Belinda, in a session, tells her psychiatrist she feels her depression is leading to her neglecting her child. Assume Belinda is charged with child endangerment. Belinda, due to the privilege need not tell prosecutors, police, or any officials anything about her comments during the sessions. Moreover, the psychiatrist is not allowed to disclose anything about her visit.
2. Example: your son, during a school session with his therapist, admits to stalking a girl and writing her inappropriate e-mails. These admissions cannot be forced from him, nor can the therapist communicate these to any third persons. But assume your son is bragging about these actions in the waiting room of the therapist and it is overheard by other patients. That is not privileged, and he may be compelled to testify about those statements as can the other patients.
And assume I advise an unlicensed marriage counselor about beating my wife. That person is not covered by the privilege since unlicensed and that evidence may be compelled.
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. This is because the presence of other patients is considered to be a vital part of the therapy.
Exceptions to the Privilege:
A criminal defendant may not claim the therapist-patient privilege when he or she has voluntarily made his or her mental state an issue in the criminal case. This will normally occur if the defendant either:
Argues that he or she is not guilty by reason of insanity; or
Argues that he or she is not mentally competent to stand trial.
Use of therapist services for criminal wrongdoing also voids the privilege. 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.
Example: A drug dealer asks his psychiatrist to hide his stash. This communication between the drug dealer and the psychiatrist is not covered by the psychotherapist-patient privilege because the drug dealer 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 or her dangerous to him or herself or to the person or property of someone else; and
Disclosure of the communication is necessary to protect against that danger.
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.
Indeed, 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. And once that information has been revealed, it may be introduced into a defendant’s criminal trial.
Child crime victim; child abuse or neglect: 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.
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. They do not have to wait for a court order or subpoena first.
Under 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.
Waiver of the Privilege:
Like other evidentiary privileges in California law, the psychotherapist-patient privilege can be waived by the patient. This is accomplished by the patient either: disclosing a significant part of the privileged communication or consenting to the disclosure of the privileged communication by anyone else.
Conclusion:
The courts do try to protect those utilizing therapy before appropriate counselors, but this protection will not extend to those not properly licensed, nor will it allow efforts to commit or conceal crimes. As with so much law, it also is abrogated in large part where children are involved.
But if you are in need of counseling and going to an appropriate giver of treatment, the odds are good that what you say will be barred from introduction into evidence.