Wednesday, May 4, 2016

Don’t Balance on Me!

Kirchmeyer v. Phillips, No.G051594 (D4d3 Mar. 28, 2016).

A case that gets to the right result on the psychotherapist-patient privilege, but potentially creates some troubling precedent.


So you’re getting divorced. That’s a tough thing to go through, and you start seeing a psychologist, who happened to be an acquaintance of yours before you started treating with him. But then, your soon-to-be-ex-husband files a complaint with the medical board, claiming that your shrink violated his ethical duties by sleeping with you. You say that never happened. And then you move to Brazil.

But the medical board nonetheless persists in its investigation. When they ultimately find you in Brazil to interview you, you again deny that anything professionally wrongful happened. Although it is true that you and the shrink did socialize some back then, due to your prior acquaintanceship. The medical board asks to read your file, and you say no.

The medical board then issues a subpoena to your psychologist for your therapy notes. Even though they are privileged under Evidence Code § 1014, as well as your constitutional right to medical privacy as a (former?) Californian. When your doctor resists, the medical board moves to enforce the subpoena in state court. The court says no, but only after reviewing your notes in camera. The medical board appeals.

The court notes that sleeping with patients is a pretty bad thing for a shrink to do—like felony bad. And consent isn’t a defense to that. But that doesn’t mean that the medical board gets to invade patient privacy in order to investigate. The psychotherapist-patient privilege in § 1014 permits the patient to prevent the disclosure of a confidential patient/doctor communication. In addition, the California Supreme Court has found that the privilege is also to some degree ingrained in the right to privacy in the state constitution.

But according to the court, the privilege can be overcome by strong enough interest by employing a balancing test.* And that’s what the trial court and the court of appeal employ here, holding that the medical board needs to show a compelling interest to defeat the privilege. According to the court, that test hasn’t been satisfied here. It specifically rejects the Board’s raised- for-the-first time-on-appeal argument that it was entitled to explore “transference”—a psychological term for when a patient projects feelings from a past attachment figure onto the psychologist himself.

Nor have any of the statutory exceptions to the privilege been met. In particular, the Board’s right to access documents under Business & Professions Code § 2225(a) requires patient consent. And in any event the Board waived the argument by failing to raise it in the trial court. Nor does Evidence Code § 1020—which creates an exception for when the patient has put the communications “in issue”—apply.

So, for now, the privileged conversations you had with your shrink stay that way, even though your ex-with-an-ax-to-grind managed to convince some regulators to rather egregiously invade your privacy over your express objections, all under the guise of protecting you.

Affirmed.

*The court gets this aspect of the analysis backwards. As any California lawyer should know, the Evidence Code abrogated the common law of evidentiary privilege in California. See Evid. Code § 911 (“Except as otherwise provided by statute . . .”). “In California, all privileges are statutory.” People v. Sinohui, 28 Cal. 4th 205, 211 (2002). A corollary to that is that courts may not “imply unwritten exceptions to existing statutory privileges.” Roberts v. City of Palmdale, 5 Cal. 4th 363, 373 (1993).

The beginning and end of the analysis here really should have been to ask whether these communications fell within the statutory psychotherapist-patient privilege (they did) and whether they nonetheless fell into one of its statutory exceptions (they did not). Unlike with some other privileges, see, e.g., Evid. Code § 1040, there’s no balancing test in the Code so there shouldn’t be any opportunity to balance the privilege away.

Where a balancing test does come into play is when the issue is the scope of the constitutional protection for privacy. Although that right is, in fact, subject to a test that balances the individual’s interests against the state’s, the constitutional protection is in addition to and not in lieu of the statutory privileges in the code. So the only reason the constitutional test (and its exception) should ever get applied is when the analysis under the Evidence Code results in a communication being not privileged. It’s not appropriate to use the constitutional balancing test to create a non-statutory exception to the privilege itself.

And indeed, the Supreme Court case the court here relies on to say that the “psychotherapist-patient privilege ‘may yield in the furtherance of compelling state interests” isn’t referring to the privilege itself. The case actually says that “the [constitutional] right to privacy is not absolute, but may yield in the furtherance of compelling state interests.” People v. Stritzinger, 34 Cal. 3d 505, 511 (1983) (emphasis added). At issue in Stritzinger was whether a recently enacted statutory exception to the psychotherapist-patient privilege for child abuse reporting infringed the constitutional right to privacy. By no means does Stritzinger stand for the proposition that the statutory privilege can simply be balanced away in the face of a sufficient state interest.

So as I said, the result is right, but the precedent is a little dangerous.

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