42 Cal.App.5th 811
Cal. Ct. App.2019Background
- Mason Fish was involved in a February 2019 vehicle collision that killed three people and injured others; he was charged with multiple crimes including three counts of gross vehicular manslaughter while intoxicated.
- At the scene Fish told officers he was under the care of a psychotherapist who had prescribed antidepressant and antipsychotic medications and that he had taken one medication the morning of the collision and another two weeks earlier; he also mentioned ketamine treatment.
- The District Attorney subpoenaed Fish's psychotherapy and medical-group records (April 24, 2017 to present).
- Fish moved to quash the subpoenas invoking the psychotherapist-patient privilege (Evid. Code § 1014); the DA argued Fish waived the privilege by his disclosures and alternatively claimed a compelling prosecutorial need.
- The trial court denied the motion insofar as it concluded Fish had waived the privilege with respect to what medications he was taking and any related advice, and indicated it would conduct an in camera review of the records; Fish sought writ relief.
- The Court of Appeal held Fish did not waive the psychotherapist-patient privilege by disclosing the existence of treatment and the medications and barred the trial court from reviewing the psychotherapy records, ordering the motion to quash granted.
Issues
| Issue | Plaintiff's Argument (Fish) | Defendant's Argument (District Attorney) | Held |
|---|---|---|---|
| Whether Fish waived the psychotherapist-patient privilege by telling officers he was seeing a psychotherapist and had been prescribed certain medications | Disclosure of the fact of treatment and medications is not a disclosure of a "significant part" of psychotherapy communications and therefore does not waive the privilege | Fish's voluntary disclosure of diagnoses/prescriptions to officers waived the privilege for related psychotherapy communications | Court: No waiver. Mere disclosure of treatment/medications is legally insufficient to waive the psychotherapist-patient privilege (San Diego Trolley controlling) |
| Whether the prosecution's asserted compelling need for the records outweighs the statutory psychotherapist-patient privilege | Privilege protects confidentiality; Fish's privacy interest prevails absent statutory exception or waiver | The public interest in prosecution and the need to prove gross negligence justify limited intrusion into records | Court: The prosecution's asserted compelling need does not overcome the statutory psychotherapist-patient privilege in the absence of an applicable exception or waiver (privilege generally "paramount to prosecution") |
Key Cases Cited
- San Diego Trolley, Inc. v. Superior Court, 87 Cal.App.4th 1083 (2001) (disclosure of existence of psychiatric treatment and medications did not waive psychotherapist-patient privilege)
- Roberts v. Superior Court, 9 Cal.3d 330 (1973) (waiver must be voluntary, knowing, and reveal a significant part of the communication)
- Menendez v. Superior Court, 3 Cal.4th 435 (1992) (psychotherapist-patient privilege generally paramount to prosecution; balancing for compelling need is not ordinarily applied)
- Jones v. Superior Court, 119 Cal.App.3d 534 (1981) (physician-patient waiver where deponent disclosed substantive medical conversations; distinguishable from psychotherapist privilege)
- Story v. Superior Court, 109 Cal.App.4th 1007 (2003) (burden-shifting and scope of psychotherapist-patient privilege)