Can't Force a Waiver of the Psychotherapist Privilege by Claiming that an Adversary Is Not Mentally Ill.

N.S. v. Superior Court, No. A148694 (D1d4 Jan. 17, 2017).

This dependency case raises an interesting issue about at-issue privilege waivers that people often miss. A party can waive a privilege by injecting an issue into a case where the privileged communications are integral to the issue. But the converse isn’t true. The other side can’t force the holder of a privilege waive by presenting an issue where privileged communications might be evidence that is useful to the proof or disproof that issue.  Which is what happened here.

Petitioner is a Minor who was receiving foster care services even after she turned eighteen. The Welfare & Institutions Code has list of eligibility factors for ongoing foster care, which include certain kinds of mental illness that prevent the ward from going to school or holding down work.The Agency tried to terminate the services. At a hearing regarding her status, when asked why she still qualified, the Minor said she had a mental condition. The Agency then called the psychologist, who said she had written a letter explaining that the Minor did, in fact, qualify. But when asked about her diagnosis and its basis, the psychologist refused to answer on the grounds of Evidence Code § 1014’s psychotherapist-patient privilege. The trial court held that any privilege was waived on account of the testimony, and Minor took a writ.

Under Evidence Code § 1016, the privilege does not apply to a “communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered” by the patient. As the Court of Appeal explains, § 1016 “applies when the patient’s own factual allegations raise an issue, not when the patient does no more than joining an issue by denying allegations.” “That is, the patient-litigant exception of section 1016 of the Evidence Code compels disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation.” (emphasis added, internal quotes omitted). Because here, the Minor's alleged failure to come within one of the statutory grounds was put into play by the Agency, not the Minor, the at-issue waiver rule is inapplicable. The fact that the Minor's treatment was implicated by her denial that she failed to meet the statutory requirements did not mean that she affirmatively put confidential communications rendered as part of her treatment at issue. That are, of course, other ways to get at the information at issue, such as a neutral mental health evaluation, which wouldn’t be privileged, but the court doesn’t reach whether those should have been ordered here.

Writ granted.