California court reverses lower court order on client records

Psychotherapist-client privilege is successfully defended in a California case, thanks in part to APA advocacy

Communications and APA Monitor Staff

February 8, 2007 — APA and the California Psychological Association (CPA) recently succeeded in confronting a judicial action that placed psychotherapist-client privilege at risk. As urged by the two psychological associations, the California Court of Appeal reversed a lower court’s order for a psychologist to disclose confidential communications with a patient.

Organized psychology became involved when Charles Faltz, PhD, CPA's director of professional affairs, received a call from a member who had been asked to release a client's records as part of a civil suit. The client began psychotherapy after an automobile accident in which another person's property was badly damaged. The property owner filed suit for emotional distress and negligence, claming that the client, who was legally intoxicated at the time of the accident, had a history of alcoholism. A Superior Court judge ordered the therapist to release his client records, saying that they were "directly relevant" to the case.

Dr. Faltz contacted APA, which became involved in the case along with CPA by filing an amicus (friend of the court) letter arguing that the Superior Court had disregarded California’s privilege law in ordering the disclosure of confidential patient records. The letter also emphasized that the court’s order would have an adverse impact on mental health treatment.

California's privilege law states that a patient "has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between patient and psychotherapist." State law provides for 12 designated exceptions to this privilege. APA attorneys say there is no "relevancy" exception in California law.

The defendant filed a motion to quash the subpoena ordered by the Superior Court, but the judge denied the motion. The defendant then appealed to the California Court of Appeal. The higher court sent the plaintiff (the property owner) a Palma notice, a procedure used in California law to give notice that the court intends to set aside the lower court's action without a hearing. Shortly after the plaintiff submitted a written response to the notice, the Court of Appeal reversed the lower court judge’s ruling, thereby protecting the confidentiality of the patient records.

Professional psychology leaders applauded the action. “The need to protect and preserve confidentiality is a central underpinning of the psychotherapy process,” says APA Executive Director for Professional Practice Russ Newman, PhD, JD. “Issues and developments like this recent case in California involving therapist-patient privilege have always been among the APA Practice Directorate’s high priority activities.”

"We considered it urgent to confront the lower court’s action” adds Billie Hinnefeld, JD, PhD, senior director of legal and regulatory affairs for the APA Practice Directorate. “If the ruling were allowed to stand, it could set a dangerous precedent.”

Hinnefeld credits Dr. Faltz for bringing the legal development in California quickly to APA’s attention. “This is a nice example of how state, territorial and provincial psychological associations and APA can work together to achieve shared goals.”

She also noted that the Court of Appeal’s decision could be appealed, but she considers it unlikely. “We’re not aware of any such plans,” says Hinnefeld.