Fish v. Superior Court (2019) 42 Cal.App.5th 811

Disclosing the fact of psychotherapy treatment does not waive psychotherapist-patient privilege.

Mason Fish was involved in an automobile accident that killed three people and severely injured three more. Fish told law enforcement that he was under the care of a psychotherapist who had prescribed antidepressant and antipsychotic medications to him. The prosecution charged Fish with gross vehicular manslaughter while intoxicated, and subpoenaed his psychotherapist’s treatment records. Fish moved to quash the subpoena based on the psychotherapist-patient privilege. (Evid. Code, § 1014.) The prosecution countered that Fish’s disclosure had waived the privilege and that its compelling prosecutorial need for the information outweighed the privilege. The trial court agreed with the prosecution, denied Fish’s motion, and indicated it would conduct in camera review of the records to determine if Fish and his psychotherapist had discussed whether the medications might affect Fish’s driving. The trial court postponed in camera review to allow Fish to seek writ relief.

The Court of Appeal granted writ relief. First, the court explained that “for policy reasons the psychotherapist-patient privilege is broadly construed in favor of the patient, while exceptions to the privilege are narrowly construed.” The court held that Fish’s mere disclosure to law enforcement that his psychotherapist had prescribed certain antidepressant and antipsychotic medications did not waive the privilege because the disclosure was not a “significant part” of his communications with his psychotherapist. And the court held that, when no waiver or exception to the privilege is established, the state’s claimed compelling need for the information to help prosecution does not overcome the privilege. (See Menendez v. Superior Court (1992) 3 Cal.4th 435.) Accordingly, the Court of Appeal prohibited the trial court from reviewing Fish’s psychotherapy treatment records in camera and ordered it to grant Fish’s motion to quash the prosecution’s subpoena of those records.

The bulletin describing the California Court of Appeal decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.