Thursday, August 18, 2016

Patient Can Change Mind on Waiver of the Psychotherapist Privilege

Gerner v. Superior Court, No. B268621 (D2d1 July 8, 2016)

This is the second psychotherapist-patient privilege case in few months. Like the previous case, it involves an effort to get a patient’s records for use in a licensing investigation. The patient—who in this case was the source of the complaint—consented to the production of the records, but later changed his mind. The trial court compelled disclosure, notwithstanding objections based on Evidence Code § 1014 and the state constitutional right to privacy. The shrink took a writ.

The court of appeal holds that the licensing statutes for physicians don’t provide an exception to the privilege. Although the Business & Professions Code creates an exception to the doctor-patient privilege, it doesn’t actually create any exception to § 1014. Indeed, because the psychotherapist-patient implicates particularly private discussions, by its own terms, § 1014 permits only exceptions contained in the article governing the privilege itself. Notably, even though many psychotherapists—particularly psychiatrists like defendant—are also medical doctors, the exceptions to the doctor-patient privileges do not create any independent exceptions to § 1014. Thus, because licensing investigations are not included in the express exceptions to the psychotherapist-patient privilege in Evidence Code §§ 1016–1027, the records remained privileged.

Nor did the patient waive the privilege by complaining to an investigator for the licensor. Waivers in this context are viewed particularly narrowly, such that the patient’s disclosure of the general nature of the treatment does not create a waiver. Further, the patient’s complaint did not invoke the exception under § 1012, which applies to patient-psychiatrist litigation, because unlike a lawsuit, a licensing complaint seeks no affirmative relief. And in any event, the patient’s later change of mind needed to be honored.

Writ granted.

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