ELIJAH W., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. B241011
Second Dist., Div. Seven
May 8, 2013
216 Cal. App. 4th 140
Steve Cooley, District Attorney, Roberta T. Schwartz and Cassandra Hart, Deputy District Attorneys, for Real Party in Interest.
OPINION
PERLUSS, P. J.—A lawyer is obligated to preserve the confidentiality of client information. (
Under the Child Abuse and Neglect Reporting Act (CANRA) (
Faced with these two divergent legislative schemes, what is the obligation of a psychologist retained or appointed as an expert to assist a lawyer representing a juvenile accused of committing a crime who learns the client is either the perpetrator or has been the victim of child abuse? Must the therаpist comply with the affirmative duty to report imposed by CANRA? Or does the obligation of the lawyer and the lawyer‘s team to maintain the confidentiality of client information, together with the lawyer-client privilege, prevail over the mandated reporter law? Do those obligations also trump a psychotherapist‘s duty under Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334] (Tarasoff) to protect reasonably identifiable victims from a patient‘s threatened violent behavior?
These vexing questions, without a clear answer under California law, were raised in the juvenile court proceedings now before us. To assist in the preparation of his defense to a wardship petition, Elijah W. sought the appointment of Dr. Catherine Scarf, a psychologist who had indicated she would respect the lawyer-client privilege and defense counsel‘s duty of confidentiality and would not report cliеnt information concerning child abuse/neglect or a so-called Tarasoff threat to authorities. The juvenile court denied the motion, ruling Elijah‘s defense team was limited to members of the court‘s juvenile competency to stand trial (JCST) panel, notwithstanding
The court erred in limiting Elijah‘s choice of expert assistance in this manner. In the absence of clear legislative guidance, we decline to read into CANRA a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant‘s right to a fair trial. Accordingly, we grant his petition for a writ of mandate and direct the court to vacate its order denying the mоtion to appoint Dr. Scarf as a defense expert and to issue a new order granting the motion.
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2011 the People filed a two-count wardship petition under
1. Elijah‘s Motion for Appointment of a Defense Expert
On March 6, 2012 Elijah, through counsel, moved pursuant to
Elijah explained the selection of Dr. Scarf, who was on the Los Angeles Superior Court‘s approved panel of psychiatrists and psychologists but not the JCST panel, was based on her assurance she would report any information concerning child abuse and/or neglect or Tarasoff threats obtained during her assessment of Elijah only to Elijah‘s counsel. “Dr. Scarf indicated that it is her position that her duty as a mandated reporter is satisfied by reporting this information to the attorney given her appointment as a forensic expert appointed under the attorney-cliеnt privilege. Further, Dr. Scarf stated that the [American Psychological Association] guidelines are consistent with her
2. The Juvenile Court‘s Amended Competency to Stand Trial Protocol
To implement
3. The Juvenile Court‘s Order Denying the Motion
The juvenile court denied Elijah‘s motion.2 In its statement of decision the court initially dismissed Elijah‘s confidentiality concern as “merely academic,” explaining, “In the hundreds of [
Substantively, the court rejected Elijah‘s argument that any psychiatrist or psychologist appointed to assist in his defense could properly refuse to disclose to a child protection agency or other appropriate authority information concerning suspected child abuse or neglect: “[T]he notion that the mandated reporting duty would be satisfied by reporting potential abuse only to the minor‘s attorney would frustrate the purpose of the mandated reporting law for the simple reason that the minor‘s attorney is not a mandated reporter.”3 The court explained the Protocol makes competency-to-stand-trial determinations in juvenile court more efficient and concluded limiting the appointment of an expert to members of the JCST panel does not impermissibly interfere with the lawyer-client privilege or impair the right to effective assistance of counsel.4
On May 7, 2012 Elijah petitioned this court for a writ of mandate directing the juvenile court to vacate its order denying his motion to appoint Dr. Scarf as a defense expert and to enter а new order granting the motion. Elijah argued following the Protocol and limiting his right to appointment of a defense expert to individuals on the JCST panel, none of whom would protect the confidentiality of lawyer-client communications concerning suspected child abuse or neglect or Tarasoff threats, violated his constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. On June 5, 2012 we issued an order to show cause why the relief requested in the petition should not be granted. Following briefing and oral argument, on February 25, 2013 we granted Elijah‘s petition in a published opinion. On March 20, 2013 we granted the People‘s petition for rehearing to consider additional arguments submitted by the parties concerning CANRA and its designation of psychiatrists and psychologists as mandated reporters.
DISCUSSION
1. The Need for Extraordinary Relief
Notwithstanding the juvеnile court‘s observation the confidentiality issue, and thus the related question of Elijah‘s right to the effective assistance of counsel, are “academic” because no juvenile has disclosed reportable information during a competency evaluation in that bench officer‘s experience, the perceived threat to open and effective communication by the minor to the defense team is real. It is certainly plausible, for example, that a young child accused of setting fires is acting out following some form of traumatic experience, perhaps even child abuse. Indeed, the delinquency petition itself states, “A Suspected Child Abuse Report (SCAR) may have been generated
Waiting to address these questions until the arguably confidential information is disclosed is too late if the psychologist rеtained to assist the defense believes disclosure is mandatory and the child is, for whatever reason, unwilling to waive his privilege or authorize its disclosure. Similarly, if the child is warned of the defense psychologist‘s intention to disclose information concerning child abuse or neglect prior to the assessment, the chill on full and frank communication is immediate, and disclosures necessary for effective representation may be inhibited. A writ of mandate is appropriate to address issues of this sort, particularly when novel questions of first impression and general importance are presented. (See, e.g., Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1124 [140 Cal.Rptr.3d 113, 274 P.3d 1110] [in context of court-ordered mental health examination in criminal case, mandamus appropriate to address whether, and if so, what protective measures are necessary to protect defеndant‘s constitutional rights; “[t]he importance of resolving such issues sooner rather than later is manifest“]; Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 101 [12 Cal.Rptr.3d 656] [writ review appropriate when petitioner seeks extraordinary relief from a discovery order that may undermine a privilege].)
2. Governing Law
a. The right to reasonably necessary ancillary defense services and the lawyer-client privilege
Several interrelated doctrines ensure that a defendant in a criminal case or a minor subject to a juvenile wardship petition has the right not only to counsel but also to necessary ancillary defense services and that communications with both counsel and any experts engaged to assist counsel will remain protected from disclosure.5 First, ” [t]he right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel [citatiоns], and thus also includes the right to reasonably necessary defense services.” (People v. Blair (2005) 36 Cal.4th 686, 732 [31 Cal.Rptr.3d 485, 115 P.3d 1145], quoting Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319–320 [204 Cal.Rptr. 165, 682 P.2d 360]; see Torres v. Municipal Court (1975) 50 Cal.App.3d 778, 785 [123 Cal.Rptr. 553] [“there can be no question that equal protection demands that in a proper
Second, with certain limited exceptions the Evidence Code provides a client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication the client has had with his or her lawyer if the privilege is claimed by someone statutorily authorized to do so. (
Taken together, these fundamental principles mandate that defense counsel‘s right to appointment of necessary experts, including medical or mental health experts, also includes the right to have communications made to the experts remain confidential to the same extent as communications directly between client and lawyer: “‘[W]hen communication by a client to his attorney regarding his physical or mental condition requires the assistance of a physician to interpret the client‘s condition to the attorney, the client may submit to an examination by the physician without fear that the latter will be compelled to reveal the information disclosed.‘” (People v. Lines (1975) 13 Cal.3d 500, 510 [119 Cal.Rptr. 225, 531 P.2d 793]; accord, People v. Roldan (2005) 35 Cal.4th 646, 724 [27 Cal.Rptr.3d 360, 110 P.3d 289], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11] [“‘The attorney-client privilege is “a privilege to refuse to disclose, and to prevent another from disclosing, a confidential
This principle is codified in
b. The interplay between the lawyer-client privilege and the psychotherapist-patient privilege
Communications between a psychotherapist and a patient are generally confidential. (
As discussed, when a psychotherapist is appointed pursuant to
c. CANRA and mandated reporters’ duty to report suspected child abuse
For nearly 50 years California has used mandatory reporting obligations to identify and protect child abuse victims. Under the predecessor to CANRA, Penal Code former section 11161.5, only physicians, surgeons and dentists were required to report instances of known or suspected child abuse to law enforcement officials, and only physical abuse had to be reported. (Stats. 1965, ch. 1171, § 2, p. 2971.) Over time both the definition of “mandated reporter” and the type of abuse that must be reported have expanded to implement the belief that “reporting suspected child abuse is fundamental to protecting children.” (Stecks v. Young (1995) 38 Cal.App.4th 365, 371 [45 Cal.Rptr.2d 475].)
Today, all doctors, psychiatrists, psychologists, clinical social workers and other mental health professionals are included in the nearly four dozen separate categories of mandated reporters identified in CANRA. (
The mandated reporter must immediately or as soon as practicably possible make a telephone report of known or suspected child abuse or neglect to any police or sheriff‘s department, county probation department (if designated by the county to receive such reports) or county welfare department (
CANRA expressly excepts information regarding suspected child abuse or neglect from the psychotherapist-patiеnt privilege: “Neither the physician-patient privilege nor the psychotherapist-patient privilege applies to information reported pursuant to this article in any court proceeding or administrative hearing.” (
Unlike physicians, psychologists and other mental health providers, attorneys are not mandated reporters under CANRA.11 And there is no provision similar to
The final strand in this intricate tapestry is the psychotherapists’ duty to protect potential victims of their dangerous patients recognized in Tarasoff, supra, 17 Cal.3d 425. In Tarasoff a patient had confided to his psychotherapist his intent to kill an unnamed but readily identifiable young woman uрon her return from South America. The therapist notified police and requested the patient‘s involuntary commitment for observation in a mental hospital. The police released the patient after they were satisfied he appeared rational and promised to stay away from the woman. The patient killed the woman. Her parents sued the therapist for wrongful death for failure to warn them or their daughter about the danger his patient presented. (Id. at pp. 432-433.) The Supreme Court recognized the general common law rule that there is no duty to protect others from the criminal conduct of third parties, but explained an exception to this rule exists in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or the foreseeable victim of that conduct. (Id. at p. 435.) The court rejected the therapist‘s contention he owed no duty to the victim because she was not his patient and held, “once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” (Id. at pp. 431, 439.)12
Acknowledging the public importance of safeguarding the confidential character of psychotherapeutic communications, the court explained the Legislature had already balanced the importance of effective treatment of mental illness and protecting the privacy rights of patients, on the onе hand, and the public interest in safety from violent assault, on the other hand, in
Nonetheless, the Tarasoff court emphasized a psychotherapist‘s determination a рatient poses a serious danger of violence to others does not automatically translate into an obligation to notify either the potential victim or law enforcement authorities. Rather, the psychotherapist‘s duty is to exercise due care: “[I]n each instance the adequacy of the therapist‘s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances.” (Tarasoff, supra, 17 Cal.3d at p. 439; see id. at p. 431 [“[t]he discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case“].)
3. The Juvenile Court Abused Its Discretion and Improperly Limited Appointment of a Defense Expert Psychotherapist to Members of the JCST Panel
As the foregoing summary demonstrates, if reasonably necessary to assist his counsel in preрaring and presenting a defense to the wardship petition, Elijah has a constitutional right to the appointment of a qualified expert, including a psychotherapist, to be part of his defense team and a corollary right to speak in confidence to that expert—a right that is further protected by both his counsel‘s duty to preserve the confidentiality of client information and the lawyer-client privilege as broadly defined in the Evidence Code. To a very limited extent the Legislature appears to have recognized this principle in
In the absence of a clear legislative resolution of the conflict, we are guided by two well-established canons of interpretation. First, “[A] statute must be construed, if reasonably possible, in a mannеr that avoids a serious constitutional question.” (People v. Engram (2010) 50 Cal.4th 1131, 1161 [116 Cal.Rptr.3d 762, 240 P.3d 237]; accord, People v. Leiva (2013) 56 Cal.4th 498, 506-507 [154 Cal.Rptr.3d 634, 297 P.3d 870] [“‘a court, when faced with an ambiguous statute that raises serious constitutional questions, should endeavor to construe the statute in a manner which avoids any doubt concerning its validity‘“].)
Second, courts have no power to recognize implied exceptions to the lawyer-client privilege. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739 [101 Cal.Rptr.3d 758, 219 P.3d 736].) “Courts may not add to the statutory privileges except as required by state or federal constitutional law [citations], nor may courts imply unwritten exceptions to existing statutory privileges.” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373 [20 Cal.Rptr.2d 330, 853 P.2d 496]; see HLC Properties, Ltd. v. Superior Court, supra, 35 Cal.4th at p. 67 [“‘[t]he privileges set out in the Evidence Code are legislative creations; the courts of this state have no power to expand them or to recognize implied exceptions‘“].)
To interpret CANRA to apply to a psychotherapist assisting defense cоunsel runs afoul of both these principles. The mandatory disclosure of client confidences by a member of the defense to report suspected child abuse or neglect has, at the very least, serious implications for a criminal defendant‘s constitutional right to the effective assistance of counsel. (See People v. Roldan, supra, 35 Cal.4th at p. 724; Torres v. Municipal Court, supra, 50 Cal.App.3d at p. 784.) We need not, and do not, decide whether such mandatory reporting, if coupled with appropriate procedural safeguards, could survive constitutional challenge. Rather, it is our task, if possible, to construe CANRA to avoid this issue. In addition, reporting information obtained from the client while assisting defense counsel plainly violates the lawyer-client
We reach essentially the same conclusion with respect to the potential disclosure of Tarasoff threats. First, it is by no means clear a psychologist engaged to assist counsel as part of a defense team, rather than performing professional services with his or her patient in a therapeutic setting, has a duty to report a threat of serious danger to a known victim. As discussed, the Tarasoff court emphasized the duty it recognized was an exception to the fundamental rule precluding liability for failing to protect others from thе criminal conduct of third parties and was predicated on the “special relation that arises between a patient and his doctor or psychotherapist.” (Tarasoff, supra, 17 Cal.3d at pp. 434, 436.) The court employed the seven-factor balancing test it had articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561], to determine, as a matter of public policy, it was appropriate to extend the protection of negligence law to the victim and her family under the circumstances presented (see Tarasoff, at p. 434), specifically noting that one of the defendant doctors had treated the patient, a second had supervised that treatment and the other two were involved in his examination and commitment (id. at p. 436, fn. 6). The relationship of a forensic psychologist engaged by counsel to the defendant/client is necessarily different from that of the treating psychologists considered in Tarasoff. Whether balancing the Rowland factors—particularly those relating to the “moral blame” of the expert and the consequences to the community of imposing liability (that is, its chill on lawyer-expert-client communications)—would result in recognizing a duty in this situation is an unresolved question.
Second, even if the defense expert psychotherapist does have a duty in these circumstances, the discharge of that duty does not necessarily require disclosure of otherwise confidential communications. Rather, under Tarasoff the psychotherapist is obligated to use reasonable care under the circumstances. (Tarasoff, supra, 17 Cal.3d at pp. 431, 439.) Dr. Scarf‘s declaration in support of Elijah‘s motion indicates, at least inferentially, she believes notifying the deputy public defender representing Elijah would constitute due care, satisfying any obligation she may have to an identifiable potential victim of a Tarasoff thrеat. Such notification would, in turn, trigger the attorney‘s responsibilities under
That may indeed be sufficient. What constitutes negligence (or a breach of the duty of due care) in this context, as in most other cases of alleged negligence, depends on all the circumstances of an individual case. (See Tarasoff, supra, 17 Cal.3d at p. 439; see generally Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 777 [122 Cal.Rptr.3d 313, 248 P.3d 1170] [“[t]he reasonable care required by negligence law depends on all the circumstances . . .“].) We cannot evaluate in advance whether Dr. Scarf‘s intended notification of Elijah‘s attorney will insulate her from liability in any particular situation, assuming she owes a Tarasoff-type duty to a рotential victim in the first place. But her position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah‘s communications at the risk of personal liability should not have been discounted by the juvenile court.
In sum, until the Legislature instructs differently, communications from Elijah to a psychotherapist appointed to assist in his defense should remain confidential: He was entitled to the assistance of an expert who would respect the lawyer-client privilege and defense counsel‘s duty of confidentiality and would not report to authorities client information concerning child abuse/neglect or a so-called Tarasoff threat. Because the members of the JCST panel would not agree to this fundamental principle, it was an abuse of discretion to deny Elijah‘s motion to appoint nonpanel-member Dr. Scarf.
The petition is granted. Let a peremptory writ of mandate issue directing respondent juvenile court to vacate its order of March 6, 2012 denying Elijah‘s motion for the appointment of Dr. Scarf and to enter a new order granting the motion.
Woods, J., and Zelon, J., concurred.
The petition of real party in interest for review by the Supreme Court was denied August 14, 2013, S211453.