Friday, June 9, 2017

Your Secrets Are Safer if Your Therapist is a PhD, Not an MD

Cross v. Superior Court, No. B277600 (D2d5 May 1, 2017)

A psychiatrist is under investigation for over-prescribing Adderall. After reviewing her prescription records, a Board of Medical examiners subpoenaed the doctor for the medical records of three patients to whom it appear that over-prescriptions occurred. The psychiatrist—claiming that she couldn’t get consent from the patients—refused to comply with the subpoenas on grounds of the physician-patient and psychotherapist-patient privileges as well as the right to medical privacy. The trial court overruled the objections and order the records produced. The doc took a writ.

The physician-patient privilege has an exception in the Evidence Code for medical licensing proceedings. Evid. Code § 1007. The psychotherapist-patient privilege doesn’t have a similar exception, because the drafters of the Evidence Code believed that a greater degree of protection was merited to ensure effective mental health treatment. But in a 1980 bill related to the Medical Practices Act, the Legislature enacted Business & Professions Code § 2225, which says: “Notwithstanding [Business and Professions Code] Section 2263 and any other law making a communication between a physician and surgeon or a doctor of podiatric medicine and his or her patients a privileged communication, those provisions shall not apply to investigations or proceedings conducted under this chapter.” 

There’s no really dispute that the records at issue would be covered by the psychotherapist-patient privilege if § 2225 doesn’t apply. So the rub is whether § 2225’s reference to “a communication between a physician and . . . his or her patients” is meant to provide only an exception to the physician-patient privilege or whether it also provides an exception to the psychotherapist-patient privilege, at least when the psychotherapist is a “physician,” i.e., a psychiatrist. The court takes the latter route. It says § 2225 applies when (1) the patient communicates with a “physician”; (2) there is an investigation authorized under the Medical Practices Act; and (3) there is a law that would otherwise privilege the communication. Finding those elements met, the court holds that the psychotherapist-patient privilege does not apply. 

The upshot of this analysis is that the psychotherapist-patient privilege is actually stronger when the psychotherapist is not a licensed medical doctor. The court recognized that in its result, but brushes it off as something that the Legislature must have intended. 


Which leaves the right to privacy. No doubt, the patients here have a state constitutional right to privacy in their medical records. And in the contest of psychological records, the state can only overcome that interest with a showing of compelling interest. Prior decisions establish, generally, that the state’s interest in combating over-prescription can be compelling. Although the psychiatrist has various evidentiary issues with the declaration the Board gave to set out its interest, the court here generally finds them trifling. So the court finds them sufficient.

But when constitutionally protected materials are sought, discovery needs to be limited to stuff that is “relevant and material” to satisfying the interest. Most of the requests at issue satisfied that test. But two have “including but not limited to” and “all other data” language that the court finds inconsistent with that test. So although the subpoenas are largely upheld, the court limits the breadth of these two requests.

Judge Kumar concurs. For some reason, he wants to make clear that the trial court’s finding that the requests met the “relevant and material” standard is subject to an abuse of discretion standard of review. (Maybe because his day job is as as superior court judge.) But he agrees the majority opinion is consistent with that standard.

Writ denied.

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