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Exception to Psychotherapist-Patient Privilege Declared
Opinion Says There’s No Applicability of Evidence Code §1014 in Proceedings to Determine Juvenile’s Fitness to Stand Trial Where Doubt as to Competency Has Been Declared by the Minor’s Lawyer
By a MetNews Staff Writer
The psychotherapist-patient privilege does not preclude a compelled production of mental health records to an expert evaluator appointed by a Juvenile Court judge to render an opinion as to a minor’s competency to stand trial, Div. Five of the First District Court of Appeal has held.
In an unpublished opinion by Justice Danny Y. Chou, filed Tuesday, the appeals court denied a petition for a writ of mandate sought on behalf of “T.M.,” the subject of a delinquency petition based on alleged sex offenses. The petition sought a determination that Contra Costa Superior Court Judge Wade Rhyne erred in ordering that all available records, including those claimed to be privileged, were to be sent to the evaluator.
Evidence Code §1014, relied upon by the youth, provides that a patient “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: [¶] (a) The holder of the privilege.”
But the section that governs, Chou said, is §1016 which provides:
“There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: [¶] (a) The patient….”
Issue ‘Tendered’
Chou said that “T.M., through his counsel, tendered the issue of his competency to stand trial to the juvenile court,” elaborating:
“By declaring a doubt as to T.M.’s competency, T.M.’s counsel undoubtedly ‘tendered’ the issue of his mental or emotional condition by presenting or offering that issue to the juvenile court for its consideration…. And once T.M.’s counsel did so, the issue is deemed to have been tendered by T.M. himself.”
It is of no significance, the justice said, that T.M.’s counsel, rather than the “patient” himself, tendered the issue, commenting that “it would be absurd to expect an accused” whose competency has been brought onto question “to declare a doubt as to his own competency.”
He declared:
“[W]e hold that, under section 1016, the psychotherapist-patient privilege does not bar the disclosure of a minor’s mental health records to the court-appointed expert in a competency proceeding where, as here, the minor’s counsel declares a doubt as to the minor’s competency.”
Stay Issued
Last Feb. 27, the appeals court issued a stay of the trial court proceedings. That same day, Rhyne received the evaluator’s report but, in light of the stay, did not read it.
The Office of Attorney General argued that the appeal is moot inasmuch as the report has been issued. Chou responded: “Although we cannot undo any disclosure of privileged communications to that expert, we may still remand for a report from an expert who has not seen or considered any such communications.”
The Attorney General’s Office also contended that T.M. failed to meet his burden of showing that any mental health records were actually received by the evaluator or, if received, were considered. That argument, Chou said, was not raised below and was therefore forfeited.
“We must therefore assume that privileged communications were disclosed to the expert pursuant to the juvenile court’s order,” he wrote.
Chou added:
“[E]ven if the petition is moot, we would not dismiss it. The issue before us—the applicability of the psychotherapist-patient privilege in juvenile competency proceedings—is an issue ‘of significant public interest’ that is ‘likely to recur.’…We therefore resolve it now.”
The case is T.M. v. Superior Court, A169823.
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