From the Classroom
By Ray Hill
Professor Emeritus, Santa Rosa Junior College

THERAPIST-PATIENT PRIVILEGE AND CRIMINAL INVESTIGATIONS

This is the fourth in a series of articles covering witness privileges in the California Evidence Code and criminal investigations. 

The therapist-patient privilege commonly arises in cases involving sanity, voluntary intoxication, unconscious of the act, involuntary intoxication, effects of disease, delirium, head injury, epilepsy, postpartum psychosis, somnambulism, “Confusional Arousal Syndrome,” “Battered Spouse Syndrome,” “Child Sexual Abuse Accommodation Syndrome,” or other legalities and defenses relating to capacity, intent, or mental ability to commit a crime or understand a duty imposed by law.

The is a confidential-communication privilege protecting disclosure reasonably necessary for diagnosis, advice, and treatment involving a mental or emotional condition (1012 E.C.). The patient or therapist can refuse to disclose and the patient can block the disclosure of a confidential communication. The privilege can be “vicariously applied” to other persons whose presence is necessary to further the interests of the privilege. This includes group therapy sessions (Lovett v. Superior Court (People) (1988) 203 Cal. App. 3d 524).

Exceptions to the Privilege 

There are some major exceptions to this privilege where communications must be disclosed:

1)  Court-Appointed Therapist – Relating to insanity, competency to stand trial, or other legal areas based upon capacity or mental condition.

2)  Existence of a Report Required Under Statute – Child abuse, neglect, or sex offenses (1026 E.C.; 11161 P.C.). 

Examples:

The defendant told a counselor and a doctor that he had sexual intercourse for 8 years with his deaf, developmentally disabled stepdaughter (Peo. v. Younghanz (1984) 156 Cal. App. 3d 811). 

In a child-molesting case, a father and stepdaughter admitted a sexual relationship to a therapist (Peo. V. Stritzinger (1983) 24 Cal. 3d 505).

3)  “Dangerous Patient Exception” – When the therapist has reasonable cause to believe the patient is in such a mental or emotional condition as to be dangerous to oneself, another person or the property of another, and the disclosure is necessary to prevent the threatened danger (1024 E.C.). The societal interest in protecting potential victims takes precedence over the confidential communication (Peo. v. Wharton (1991) 53 Cal. 3d 522). 

Examples:

  An emergency mental commitment (5150 W&I); Where the therapist believed his patient posed a serious threat to the therapist himself, his family and his associates. However, two sessions where threats were not communicated remained confidential (Menendez v. Superior Court (1992) 3 Cal. 4th 435); 

A patient’s disclosure about an arson offense involving bodily injury. The patient demonstrated dangerous propensities (In re; Kevin F. (1989) 213 Cal. App/ 3d 178); 

The defendant raped a victim who was a patient in a county psychiatric hospital. There was a compelling interest in protecting other victims from violent attack (County of Alameda v. Superior Court (Darlene W.) (1987) 194 Cal. App. 3d 254); 

Statements made by a minor to a family counselor (“he would stab two unnamed students with whatever he had available at school the next day if they continued to bully him”) was subject to disclosure under the “Dangerous Patient Exception” (In. re: A.C. (2020) 54 Cal. App. 5th 38).

Consequences for Not Reporting Danger

A therapist or governmental entity may be held civilly liable for failure to make a report of reasonable danger and warn a victim or law enforcement of a potential threat (Tarasoff v. University of California (1976) 17 Cal. 3d. 425); Thompson v. County of Alameda (1980) 27 Cal. 3d. 741). 

In the case of failure to make a required report of child physical or sexual abuse, a misdemeanor has occurred.

Once Disclosed, Follow Up

So, whether the information is relayed to you by the district attorney about a disclosure made to a court-ordered therapist; a disclosure involving physical abuse, sexual abuse, or neglect of a minor; or a disclosure communicated to you by a victim (after receiving a warning from a therapist) or therapist him/herself that involves a clear threat to person or property, you have the information. 

Follow-up investigation and the gathering of evidence for the district attorney to present in court is likely in order.
 

Unusual DUI Defense Successful (Santa Rosa Press Democrat – 2/11/23)

It is not often that we see a defense to a crime while Acting Under Threats or Menaces (26 P.C.). Under this statute, a person acting under a direct and immediate threat of bodily injury can be judged not criminally responsible.

But that’s exactly what happened in a recent Mendocino County DUI case. 

Background 

The defendant and his wife were separated. She went to his home and found him in bed with another woman. Both the defendant and the woman had been drinking. A loud argument ensued and the defendant left the residence with both women in hot pursuit.

 His spouse began “pummeling” him with her fists while “angrily berating him” and the second woman began throwing rocks at him. Fearing bodily injury, he jumped in his vehicle and drove away. He parked on the side of the roadway and fell asleep. He was contacted by a deputy sheriff and was subsequently arrested by the CHP after a DUI evaluation. His blood-alcohol content was .08.

 Clever defense strategy. Defendant drove away to prevent further harm. He was acquitted after a 4-day jury trial.

Stay safe,

RH