1. What Does the Law Expect of Me? Part III David G. Jensen, J.D. CAMFT Staff Attorney

2. Copyright Notice PowerPoint presentation and accompanying handout are the property of CAMFT. All rights reserved. © California Association of Marriage and Family Therapists 2001-2005

3. Disclaimer The information provided in this presentation is for EDUCATIONAL PURPOSES ONLY!  It is NOT the DEFINITIVE word on these subjects!  It is NOT intended to be a SUBSTITUTE for INDEPENDENT LEGAL ADVICE!

4. Introduction Nine life-changing words! Goal = Raise the level of discourse among and by MFTs about the psychotherapist- patient privilege and its nuances The deeper the roots; the higher the reach! Good or great therapist? Relax & Play!

5. Introduction Agenda for the Day  The Psychotherapist-Patient Privilege  What kind of witness are you?  Nuts & Bolts of Subpoenas

6. The Psychotherapist-Patient Privilege Introduction

7. Introduction The Problem: A Language You Probably Don’t Understand  Your res ipsa loquitor has just “pierced the corporate veil,” which has resulted in “fruit of the poisonous tree” being let into the stream of commerce; consequently, under the legal doctrine of respondeat superior, I am going to sue you and you are going to lose your license and be liable to me for punitive damages! The Solution: Knowledge!

8. Introduction Why study this stuff?  1. One of your most SACRED obligations is to ASSERT the psychotherapist-patient privilege, so it behooves you to understand and appreciate it in all its complexity. Tis a beautiful thing!  2.To prepare for the inevitable dialogue with an attorney, whether one on your side, your patient’s side, or the other side!

9. Introduction Why study this stuff?  3.So you can STAND UP FOR YOURSELF!  4.You may have to SAVE the day, or you may be able to make life for the lawyer representing your client a bit easier!  5. To have a CONTEXT, for the DRAMA playing out in front of you, whether inside or outside of the courtroom

10. Introduction The Psychotherapist-Patient Privilege:  Types of privileges  The Basic Rule  Key terms, principles, and concepts of the psychotherapist-patient privilege  What kind of witness are you?  Ending the tyranny of the subpoena  The End From the Beginning

11. The Psychotherapist-Patient Privilege Types of Privileges

12. Types of Privileges So, what is a privilege?  Restriction on testimony during a legal proceeding!  But … Purpose of the privilege:  The purpose of the PPP is to protect the privacy of a patient’s confidential communications to his or her therapist. In re Kristin W. (2001) 94 CA4th 521

13. Types of Privileges The psychotherapist-patient privilege:  “Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient’s life.  Unless a patient is assured that such information can and will be held in utmost confidence, he or she will be reluctant to make the full disclosure upon which diagnosis and treatment depends.” San Diego Trolley, Inc. v. Sup. Ct. (2001) 97 CA4th 1083

14. Types of Privileges There are two categories of privileges:  One category is predicated on a CONFIDENTIAL RELATIONSHIP: Attorney- client, husband-wife, physician-patient, psychotherapist-patient, clergy-penitent, etc.  The other is predicated on the TYPE OF INFORMATION: the privilege against self- incrimination, official information and informant identity privilege, trade secrets, etc.

15. The Psychotherapist-Patient Privilege The Basic Rule

16. The Basic Rule The Basic Rule (“Fundamental Proposition”) regarding the PPP:  Absent a WAIVER of the PRIVILEGE, or an applicable EXCEPTION to privilege, a PATIENT, whether or not a PARTY to the LEGAL PROCEEDING, has a privilege to refuse to disclose, and to prevent others from disclosing, a CONFIDENTIAL COMMUNICATION between PATIENT and PSYCHOTHERAPIST. California Evidence Code §1014 Seems fairly simple, but …

17. The Basic Rule The power of the privilege!  A timely assertion of privilege CREATES an AUTOMATIC GROUND for EXCLUSION or NONDISCLOSURE of the privileged information unless and until the judge overrules the assertion of privilege and orders disclosure! California Evidence Code § 914

18. The Basic Rule The cant or tilt of the privilege!  When the privilege rests on a relationship of confidence and the privilege is asserted, the communication in question is PRESUMED to have been MADE IN CONFIDENCE, which SHIFTS the burden to the opposing party to establish that the communication was not confidential California Evidence Code § 917(a)

19. The Basic Rule The scope of the privilege!  The psychotherapist-patient privilege may be asserted in ALL PROCEEDINGS in which testimony may be compelled, i.e., investigations, inquiries, and administrative proceedings, as well as trials! California Evidence Code §§ 901, 910

20. The Psychotherapist-Patient Privilege Key Terms, Principles, and Concepts

21. The psychotherapist-patient privilege Key terms, principles, and concepts:  1.Patient  2.Psychotherapist  3.Confidential communications  4.Holder of the privilege  5.Asserting the privilege  6.Waiving of the privilege  7.Some common exceptions to the privilege

22. The Psychotherapist-Patient Privilege Patient

23. Key terms, principles, and concepts “Patient” means someone who:  Consults a psychotherapist  SUBMITS to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his or her mental or emotional condition, or  SUBMITS to an examination for the purpose of scientific research on mental or emotional problems California Evidence Code §1011

24. Key terms, principles, and concepts For purposes of the psychotherapist-patient privilege, can a dependent child be a patient?  Yes!  The psychotherapist-patient privilege applies to confidential communications BETWEEN a dependent CHILD and his or her THERAPIST. See In re Mark L. (2001) 94 CA4th 573 and In re Daniel C.H. (1990) 220 CA3d 814

25. Key terms, principles, and concepts “Patient” means:  But, mother who participated in a bonding study was NOT a “PATIENT” within the meaning of the PPP. Hence, information was not protected by the PPP.  Why? She was not seeking a diagnosis or treatment! In re Tabatha G. (1996) 45 CA4th 1159

26. The Psychotherapist-Patient Privilege Psychotherapist

27. Key terms, principles, and concepts Who is a psychotherapist?  A wrinkle to the rule! Psychotherapist is someone who IS a “X” or who is REASONABLY BELIEVED by the patient to be a “X” Includes psychiatrists, psychologists, licensed clinical social workers, licensed marriage and family therapists, registered psychological assistants, registered MFT interns, registered associate clinical social workers, psychological interns, and MFT trainees,* among others

28. The Psychotherapist-Patient Privilege Confidential Communications

29. Key terms, principles, and concepts A “CONFIDENTIAL COMMUNICATION.”  INFORMATION TRANSMITTED between patient and psychotherapist +  In the COURSE of that relationship +  In CONFIDENCE +  By a MEANS which, so far as the patient is aware, discloses the information to NO third persons …( continued on next slide)

30. Key terms, principles, and concepts …other than those:  1.Present to FURTHER THE INTERESTS of the PATIENT in the consultation  2.To whom disclosure is reasonably necessary for TRANSMISSION of the information, or  3.To whom the information is reasonably necessary for the ACCOMPLISHMENT OF THE PURPOSE for which the psychotherapist was consulted. California Evidence Code § 1012

31. Key terms, principles, and concepts Preserving the Confidentiality of Confidential Communications.  The FORGOTTEN exception to confidentiality!  Remind patients that they should ONLY disclose treatment information: 1. To those whom disclosure is reasonably necessary for transmission of the information, or 2.To those whom the information is reasonably necessary for the accomplishment of the purpose for which the psychotherapist was consulted.

32. Key terms, principles, and concepts Preserving the Confidentiality of Confidential Communications.  The FORGOTTEN exception to confidentiality! 3.And, do not let anyone in the session unless you determine that the person will somehow further the patient’s therapy or counseling.

33. Key terms, principles, and concepts But, How Likely is this to Happen?  Consider the case of Manela v. Superior Court!  David and Mira Manela are divorcing.  Jacob is their four-year old son.  This is a raging custody battle with a unique discovery dispute. Physician-Patient Privilege case with heavy Psychotherapist- Patient privilege implications  Mom contends dad has a seizure disorder that affects his ability to care for Jacob; dad says all he has is a “tic” that is controlled by medication.

34. Key terms, principles, and concepts The Seizures:  Mom says dad’s “seizures” are “regular” and last anywhere from 45 seconds to 21/2 minutes.  The seizures usually occur when father awakens from sleep.  Mom declares that father has had the “aura of a seizure” occur while dad was driving and had to pull the car over to the side of the road.  But, no actual seizure occurred while dad was driving!  Dad does not lose consciousness when a seizure occurs.

35. Key terms, principles, and concepts The Seizures:  Mom says the seizures cause dad’s head, neck, shoulders, and one arm to seize.  The seizures are “extremely loud and very frightening.”  Dad loses his ability to speak and often vomits.  Again, dad denies he has a seizure disorder; he says he has a “tic” and it is controlled by medication.

36. Key terms, principles, and concepts The Case and the Dispute:  On June 17, 2008, father files a petition for dissolution of the marriage.  Mom replies and requests sole legal custody of Jacob.  On August 7, 2008, in his ex parte application, dad requests joint legal custody; in her response, mom requests sole legal custody.  The judge’s order “temporarily prohibits” dad from driving Jacob until the court obtains more information about dad’s alleged seizure disorder.

37. Key terms, principles, and concepts The Case and the Dispute:  On August 12, 2008, mom files a declaration concerning dad’s seizure disorder. She relates that dad is on Tegretol. She requests that dad not be allowed any overnight visits and that dad not drive Jacob.  On August 13, 2008, dad files a declaration from his neurologist, Dr. Gross, who declares that he is treating dad for 9 years for “hypnagogic movements, also known as a “tic disorder.”  Dr. Gross declares dad’s condition is controlled by Tegretol and that dad can drive safely.

38. Key terms, principles, and concepts The Case and the Dispute:  On August 14, 2008, mom issues subpoenas to Dr. Cohen and Dr. Morrison to “produce all medical records pertaining to David Manela.”  On August 15, 2008, the court awards joint legal custody, with no restrictions on dad’s driving of Jacob.  On August 29, 2008, dad files a motion to quash the subpoenas, citing the physician- patient privilege.

39. Key terms, principles, and concepts The Case and the Dispute:  Mom contends that the medical records would support her seizure argument because: Dr. Morrison had treated dad for seizures when dad was 11 years old and for some years thereafter. On August 29, 2007, mom was present at an appointment with Dr. Cohen when dad was examined for his neurological condition. At that appointment, dad described in detail his seizures to Dr. Cohen.  So, mom’s case or dad’s rights?

40. Key terms, principles, and concepts The Case and the Dispute:  Mom contends that dad waived the physician- patient privilege by: Having Dr. Gross file a declaration in the proceeding about dad’s condition Speaking to Dr. Cohen about his condition in mom’s presence  Mom also argues that dad tendered the issue of his condition  Mom also argues that these waivers of the privilege apply to Dr. Morrison as well

41. Key terms, principles, and concepts The Case and the Dispute:  Dad argues that his communications with Dr. Cohen and Dr. Morrison are protected by: The Physician-Patient Privilege His right to privacy under the state and federal constitutions

42. Key terms, principles, and concepts The Court’s Decision:  Dr. Cohen Dad waived the protection of the physician-patient privilege by allowing mom to be present during his appointment with Dr. Cohen on August 29, 2007. Dad could offer no evidence as to why her presence was necessary to further his therapy. What about the marital-communications privilege?  No privilege if the legal proceeding is brought by one spouse against the other

43. Key terms, principles, and concepts The Court’s Decision:  Dr. Morrison: Dad’s waiver of the privilege concerning Dr. Cohen and Dr. Gross did not constitute a waiver of the privilege for Dr. Morrison.  The “Tender” Argument: Dad did not tender his medical condition by simply denying wife’s allegations regarding his condition.  The “Right to Privacy” Argument: Mom is entitled to any “non-privileged documents relating to dad’s tic/seizure.

44. Key terms, principles, and concepts Is a patient’s name confidential?  Yea, but don’t be surprised if …. The fact that the patient is in therapy has already been disclosed BY THE PATIENT in answer to questions posed to him or her during the discovery phase of litigation  Form Interrogatories

45. Key terms, principles, and concepts Two important cases:  1.Smith v. Sup. Ct. (1981) 118 CA3d 136: As a general rule, the PPP PROTECTS against the COMPELLED DISCLOSURE of a patient’s NAME Why? Disclosing the patient’s identity reveals that the person suffers from mental or emotional problems But, … (see next case)

46. Key terms, principles, and concepts Is a patient’s name a confidential communication?  2.County of Alameda v. Sup. Ct. (1987) 194 CA3d 254 Since disclosing the patient’s name only creates a broad inference of mental or emotional problems, the patient’s name MAY BE DISCLOSED in “extraordinary” cases where the court determines that the need for disclosure is absolutely essential to a cause of action

47. Key terms, principles, and concepts Some attempts at creative “lawyering.”  But, what about CONFIDENTIALITY and GROUP THERAPY? The presence of other participants in a group therapy session provides comfort and facilitates treatment. Hence, these communications are reasonably necessary for the purpose for which the psychotherapist was consulted.  Farrell L. v. Sup. Ct. (1988) 203 CA3d 521

48. Key terms, principles, and concepts But, what about CONFIDENTIALITY and communications from FAMILY MEMBERS?  Information crucial to effective treatment and therapy may necessarily have to come from a patient’s family members. To this extent, communications between the patient’s family and a psychotherapist are privileged. Grosslight v. Sup. Ct. (1977) 72 CA3d 502

49. Key terms, principles, and concepts But, what about COMMUNICATIONS with the JUVENILE COURT?  In child dependency cases, the “reasonably necessary” disclosure provision allows a minor’s therapist to give “carefully circumscribed” and “limited testimony” to the juvenile court.  Such testimony helps the court to make “reasoned recommendations and decisions” regarding the child’s welfare. In re Mark L.(2001) 94 CA4th 573

50. Key terms, principles, and concepts But, what about CONFIDENTIALITY and the AUDIO-TAPING or VIDEOTAPING of sessions?  Confidentiality is not compromised simply by the fact of audio-taping sessions. The mere act of audio-taping cannot be characterized as a disclosure! Menendez v. Sup. Ct. (1992) 3 C4th 435

51. Key terms, principles, and concepts But, what about EMAILS to and from a patient?  As long as they are premised on the confidential relationship, electronic communications do not lose their status as privileged communications Evidence Code § 917(b)  “Electronic” includes fax, email, cell-phones Civil Code § 1633.2(e)

52. Key terms, principles, and concepts But, we are in “DISCOVERY” and the information may not be used at trial!  The psychotherapist-patient privilege applies to discovery as well as trial In re Tabatha (1996) 45 Cal.App.4 th 1159

53. Key terms, principles, and concepts Review and Preview: Creating the psychotherapist-patient privilege:  Need three things to create the PRIVILEGE: a “patient,” a “psychotherapist,” and “confidential communications.”  Other issues: 1.Who HOLDS the privilege? 2.Who can ASSERT the privilege? 3.Who can WAIVE the privilege? 4.Are there EXCEPTIONS to the privilege?

54. The Psychotherapist-Patient Privilege Holding the Privilege

55. Key terms, principles, and concepts Who holds the privilege?  The “HOLDER” of the privilege is: The patient when he or she has no guardian or conservator A guardian or conservator of the patient when the patient has a guardian or conservator The personal representative of the patient if the patient is dead  California Evidence Code § 1013

56. Key terms, principles, and concepts Who holds the privilege?  Interesting case: Boling v. Superior Court (1980) 105 Cal. App. 3d 430 Mom who brought action for the wrongful death of her son, but did not show that she was her son’s executrix or administratrix was not entitled to assert the psychotherapist-patient privilege on her son’s behalf

57. Key terms, principles, and concepts Who holds the privilege?  For the record, psychotherapists DO NOT HOLD THE PRIVILEGE for their patients.  They ASSERT THE PRIVILEGE on behalf of their patients! See Evidence Code § 1015 and Mavroudis (1980) 102 Cal. App. 3d 594

58. The Psychotherapist-Patient Privilege Asserting the Privilege

59. Key terms, principles, and concepts Who can ASSERT the privilege? Three (3) Possibilities:  Possibility 1 : The “HOLDER” of the privilege, which means: The patient when he or she has no guardian or conservator A guardian or conservator of the patient when the patient has a guardian or conservator The personal representative of the patient, if the patient is dead  California Evidence Code § 1013

60. Key terms, principles, and concepts Who can assert the privilege?  Possibility 2 : A person AUTHORIZED TO ASSERT the privilege by the HOLDER of the privilege

61. Key terms, principles, and concepts Who can assert the privilege?  Possibility 3 : The person who was the PSYCHOTHERAPIST at the time the confidential communication was made, but the psychotherapist may not claim the privilege if there is no holder of it in existence or if he or she is otherwise instructed by a person authorized to permit disclosure. California Evidence Code § 1014

62. Key terms, principles, and concepts The PPP and therapists:  Remember, you have an AFFIRMATIVE OBLIGATION to ASSERT the psychotherapist- patient privilege WHENEVER third parties seek confidential communications! California Evidence Code § 1015

63. Key terms, principles, and concepts “Asserting the privilege” means:  Good news! No person may be held in CONTEMPT for failure to disclose information claimed to be privileged unless he or she has failed to comply with an order of a court that he or she disclose such information  California Evidence Code § 914(b)

64. The Psychotherapist-Patient Privilege Waiving the Privilege

65. Key terms, principles, and concepts Waivers of the privilege:  The psychotherapist-patient privilege is “WAIVED” when the patient “VOLUNTARILY ABANDONS” the secrecy of the information that the privilege protects. California Evidence Code § 912(a)

66. Key terms, principles, and concepts Waivers of the privilege:  Happens in one of three ways: 1.The patient CONSENTS to the disclosure (Its OK!) 2.The patient DISCLOSES a “significant part” of the confidential communication (Oops!)  Warning! This could be done without the patient thinking about the consequences! 3.Due to the underlying facts, there is some EXCEPTION to the privilege (Trade-off)  Exceptions will be discussed later!

67. Key terms, principles, and concepts Who can waive the privilege?  Since privileges are personal to the holder, only the holder can waive it.  The HOLDER is: The patient when he has no guardian or conservator, A guardian or conservator of the patient when the patient has a guardian or conservator, or The personal representative of the patient, if the patient is dead  California Evidence Code § 1013

68. Key terms, principles, and concepts Who can waive the privilege if the patient is a minor?  The In re Daniel problem!

69. Key terms, principles, and concepts Key question: What is the nature of the underlying legal proceeding?  Civil lawsuit involving child as plaintiff = guardian ad litem needs to waive  Family Court custody or visitation proceeding = has minor’s counsel been appointed? (Family Code § 3150) If so, minor’s counsel makes the call If not, keep in mind the discretion the law gives you!  But, don’t be surprised if the judge allows mom and/or dad to waive privilege on behalf of the minor

70. Key terms, principles, and concepts Key question: What is the nature of the underlying legal proceeding?  Juvenile Court dependency proceeding = if the court finds that the child is of “sufficient age and maturity,” the child can waive privilege; if not, counsel for the child can waive the privilege (Welfare & Institutions Code § 317(f))  What if the minor is just a witness in the underlying legal proceeding, but not a party to such proceeding?

71. Key terms, principles, and concepts Waivers of the privilege:  What about MEDICAL RELEASES? They can be WAIVERS of the privilege, but the terms of the release must be clear and unambiguous!  Medical Releases. Two important cases: 1.Roberts v. Sup. Ct. (1973) 9 C3d 330  A form consent was NOT a waiver of the PPP because the language led the insured to believe that consent applied only to records concerning her physical injuries

72. Key terms, principles, and concepts Waivers of the privilege:  Medical Releases. Two important cases: 2.In re Fred J. (1979) 80 CA3d 168  Mother effectively waived her right to assert the PPP in a juvenile court dependency proceeding where, during the Department of Social Services investigation process, she signed three release forms authorizing disclosure of reports from her doctor

73. Key terms, principles, and concepts Waivers of the privilege:  What about communicating with a guardian ad litem? Doing so does not waive the PPP!  De Los Santos v. Sup. Ct. (1980) 27 C3d 677

74. Key terms, principles, and concepts Waivers of the privilege:  A subtlety: Is there such a thing as a LIMITED WAIVER of the privilege?  Yes! Important case: In re Joseph Lifschutz (1970) 2 Cal.3d 415  Note the year this case was decided!

75. Key terms, principles, and concepts Facts of the case:  Dr. Lifschutz was a psychiatrist who had a patient who was the victim of an assault  The patient sued his assailant for damages, alleging “physical injuries, pain, suffering, and severe mental and emotional distress”

76. Key terms, principles, and concepts Facts of the case:  At his deposition, Dr. Lifschutz: 1.Refused to acknowledge that the plaintiff was his patient, 2.Refused to answer questions about the patient, and 3.Refused to turn over records pertaining to his patient  Dr. Lifschutz cited “absolute” patient privacy as justification for his conduct

77. Key terms, principles, and concepts Facts:  The defendant brought a motion to compel Dr. Lifschutz to answer questions and turn over treatment records, alleging that the patient had tendered his mental or emotional condition in the lawsuit  The Superior Court then ordered Dr. Lifschutz to answer questions and turn over records

78. Key terms, principles, and concepts Facts:  Terms of the order: “The witness is hereby ordered to answer the questions involved in the taking of his deposition and to comply with the production requirements of the subpoena duces tecum issued in this proceeding. This matter will be continued for 30 days during which time Dr. Lifschutz will comply with this order at a time during said period agreed upon by the parties. Motion for sanctions and attorney’s fees denied.”

79. Key terms, principles, and concepts Facts:  But, Dr. Lifschutz “remained resolute in his refusal to respond or release records.”

80. Key terms, principles, and concepts Facts:  Dr. Lifschutz petitioned the Court of Appeal and the U.S. Supreme Court for help, but his remonstrations were denied  A contempt hearing was held, and Dr. Lifschutz was imprisoned for contempt of court  Ultimately, on a writ of habeas corpus, the California Supreme Court reviewed his case  He remained in jail until the case ended or he agreed to comply with the order

81. Key terms, principles, and concepts Six Points of Law from Lifschutz:  1.A psychotherapist may NOT assert his patient’s privilege with respect to a communication if the privilege has been waived or if the communication falls within the statutory exceptions to the privilege.

82. Key terms, principles, and concepts Six Points of Law from Lifschutz:  2.The mere admission of the existence of the (therapist-patient) relationship does not constitute a disclosure of a “significant part of the communication” to waive the privilege. This stick does not break the camel’s back!

83. Key terms, principles, and concepts Six Points of Law from Lifschutz:  3.The patient-litigant exception allows only a LIMITED INQUIRY into the confidences of the psychotherapist-patient relationship, and compels disclosure of only those matters DIRECTLY RELEVANT to the nature of the specific emotional or mental condition that the patient has voluntarily disclosed and tendered in his or her pleadings or in answer to discovery inquiries.

84. Key terms, principles, and concepts Six Points of Law from Lifschutz:  4.Except when an exception to privilege applies, the trial court may utilize protective measures at its disposal to avoid unwarranted intrusions into the confidences of the relationship between psychotherapist and patient. Is the patient’s lawyer getting a Protective Order?

85. Key terms, principles, and concepts Six Points of Law from Lifschutz:  5.The patient may have to submit some showing that a given communication is not directly related to an issue that the patient has tendered! This means the patient may have to explain, in general terms, how the information is not relevant

86. Key terms, principles, and concepts Six Points of Law from Lifschutz:  6.In general, the statutory psychotherapist- patient privilege is to be LIBERALLY CONSTRUED in FAVOR of the PATIENT! The tilt of the law is towards the patient and his or her privacy rights! All Hail Dr. Lifschutz!

87. Key terms, principles, and concepts The idea of “Participation & Progress”  Key case: In re Kristine (2001) 94 Cal.App.4 th 521 Facts:  In August 2000, Kristine was 16 years old and her father physically and sexually abused her  Kristine was made a dependent of the court, and she was placed with her grandparents and then with her uncle, but these placements did not work out  In March 2001, the court ordered Kristine into foster care  Kristine ran away from her placements, she skipped school, she refused to follow rules, she had angry outbursts, and she engaged in self-mutilation

88. Key terms, principles, and concepts “Participation & Progress”  Facts: In April 2001, Kristine tells the court she “very much feels in need to talk to someone confidentially” But, she did not want to go to therapy because she did not trust the therapist, explaining “every time I tell my therapist something, it gets back to my dad”  Detour: What about the “D” word? California Health & Safety Code §123115  Harm treatment relationship? Expose child to a risk of physical or emotional harm?

89. Key terms, principles, and concepts “Participation & Progress”  Facts: Kristine begins living with another uncle, Patrick, agreeing to comply with his conditions:  Attend counseling  Attend school  Adhere to the house rules

90. Key terms, principles, and concepts “Participation & Progress”  Facts: Since Kristine is a dependent of the court, the county social worker wants to get information about Kristine from Kristine’s psychotherapist  The county: we need the information to implement the services Kristine needs to make a successful transition from court-dependent minor to adult  Kristine’s attorney says no: communications are protected from disclosure by the psychotherapist-patient privilege!

91. Key terms, principles, and concepts “Participation & Progress”  The court’s decision: The psychotherapist-patient privilege protects Kristine’s confidential communications and details of the therapy, but does not preclude her therapist from giving circumscribed information, i.e., “PARTICIPATION AND PROGRESS,” to accomplish the information-gathering goal of therapy. Key question: What information would reasonably assist the court in evaluating whether further orders are necessary for the minor’s benefit, but also preserves the confidentiality of the details of her therapy?

92. Key terms, principles, and concepts The Role of Minor’s Counsel  California Family Code § 3151  Minor’s Counsel has the following rights: 1. Reasonable access to the child 2.Standing to seek affirmative relief on behalf of the child 3.Notice of any proceedings 4.The right to take any action available to a party in the proceeding 5.Access to the child’s records, including mental health ones

93. Key terms, principles, and concepts “The Role of Minor’s Counsel”  Minor’s Counsel has the following rights: 6. The right to interview health care providers and mental health professionals 7.Advance notice of, and the right to refuse, any psychological examination or evaluation 8.The right to assert or waive any privilege on behalf of the child 9.The right to seek independent psychological or physical examination or evaluation of the child for purposes

94. The Psychotherapist-Patient Privilege Some Exceptions to Privilege

95. Exceptions: Patient-Litigant 1. The patient-litigant exception:  No privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such an issue has been tendered by: The patient Any party claiming through or under the patient Any party claiming as a beneficiary of a patient through a contract to which the patient is or was a party A plaintiff for injuries or death to the patient  Evidence Code § 1016

96. Exceptions: Patient-Litigant Key questions:  1.Has the patient specifically tendered a mental or emotional issue in the proceeding? Just because the lawyer says the patient has does not mean the patient really has! Beware of the “overbroad” problem!  2.Is the communication “directly relevant” to the specific mental or emotional issue tendered by the patient? Not just relevant, but “directly relevant”! Remember In re Lifschutz (1970) 2 C3d 415

97. Exceptions: Patient-Litigant What about an allegation of “PAIN and SUFFERING”? Roberts v. Superior Court (1973) 9 C3d 330 Facts:  Janet Roberts was injured in an automobile accident on March 24, 1971.  She later filed a personal injury action for damages, claiming she was “rendered sick, sore, lame, and disabled” by the accident. Specifically, she said she had severe pain in her neck and back, dizzy spells, and headaches

98. Exceptions: Patient-Litigant What about an allegation of “PAIN and SUFFERING”? Facts:  In discovery, she disclosed that she had been hospitalized for attempting suicide by taking an overdose of pills.  She also disclosed that she had seen Dr. Ely, a psychiatrist.  The defendants then subpoenaed Dr. Ely’s records regarding Ms. Roberts.  Dr. Ely asserted the PPP; the defendants brought a motion to compel.

99. Exceptions: Patient-Litigant What about an allegation of “PAIN and SUFFERING”? Facts:  A curve ball: the defendants, by subpoenaing Ms. Robert’s other providers, were able to get Dr. Ely’s reports from her other providers.  Ms. Roberts was able to get an order from the court sealing those records!  Impasse, impasse, impasse  Ultimately, The California Supreme Court ruled that: Dr. Ely’s records were barred from discovery. Dr. Ely’s records should be returned to him.

100. Exceptions: Patient-Litigant What about an allegation of “PAIN and SUFFERING”? Courts conclusions:  1.Alleging pain and suffering does NOT constitute the tendering of a patient’s mental or emotional condition! The case was about neck and back pain, not mental suffering!  2.The assertion of privilege must be upheld where the patient has not specifically placed his or her mental condition at issue.

101. Exceptions: Patient-Litigant What about an allegation of “PAIN and SUFFERING”? Courts conclusions:  3.The assertion of privilege must be upheld where disclosure of confidential information is sought simply upon speculation that there may be a connection between the patient’s treatment and some mental component of his or her injury.  4.The mere exchange of records among health care practitioners treating the patient does not constitute a waiver of the psychotherapist-patient privilege.

102. Exceptions: Patient-Litigant What about an allegation of “PAIN and SUFFERING”? Courts conclusions:  5.A signed release or authorization that does not specifically mention an individual’s mental or emotional condition is not a waiver of the psychotherapist-patient privilege.  6.What about “pain” as a mental or emotional condition?

103. Exceptions: Patient-Litigant What about PAIN as a mental or emotional CONDITION?  The propositions: Any physical injury is likely to have the accompanying mental component of pain Thus, in any lawsuit for personal injuries, a mental component may be said to always be at issue  Court says “No.”

104. Exceptions: Patient-Litigant What about PAIN as a mental or emotional CONDITION?  Rationale for courts decision: To allow discovery of past psychiatric treatment merely to ascertain whether the patient’s past condition may have decreased his tolerance to pain or whether the patient has discussed with his psychotherapist complaints similar to those being litigated would defeat the purpose of the PPP.

105. Exceptions: Patient-Litigant What about PREVIOUS psychiatric treatment records? Patterson v. Superior Court (1983) 147 Cal. App. 3d 927 Facts:  Patterson was transferred from the psychiatric ward of Chope Hospital to the Cordilleras Center  Patterson’s history indicated two previous suicide attempts

106. Exceptions: Patient-Litigant What about PREVIOUS psychiatric treatment records?  Patterson was found to have suicide ideation and he was placed in seclusion and under close observation at Cordilleras  Three days later Patterson agrees not to harm himself, so seclusion and close observation cease  Two weeks later, but while still in the hospital, Patterson commits suicide

107. Exceptions: Patient-Litigant What about PREVIOUS psychiatric treatment records?  Patterson’s family brings a wrongful death action against Cordilleras for negligently failing to take proper measures to protect the decedent from his suicidal urges  Cordilleras seeks to get all of Patterson’s medical and psychiatric records from: Napa State Hospital, Peninsula Hospital Medical Center, Chope Hospital, Mary’s Help Hospital, McAuley Neuropsychiatric Institute, Sequoia Hospital, and Harry Bryan, M.D.

108. Exceptions: Patient-Litigant What about PREVIOUS psychiatric treatment records?  The family objects on grounds that his previous treatment history is not relevant to whether Cordilleras was negligent The family did not allege that Cordilleras caused or aggravated Patterson’s condition The family did not allege that Cordilleras was negligent in not investigating Patterson’s past medical history

109. Exceptions: Patient-Litigant What about PREVIOUS psychiatric treatment records?  Defendants insist Patterson has tendered his mental or emotional condition  The court sides with the defendants, largely because Patterson’s psychiatric condition was at the heart of the lawsuit  Key questions: What issues have been raised by the plaintiff? What defenses do the defendants have?

110. Exceptions: Patient-Litigant What about filing a “Proof of Death” certificate? Grey v. Superior Court (1976) 62 Cal. App. 3d 698 Facts:  Dr. Grey was killed when a car he was driving rear-ended a truck  He had a life insurance policy from Northwestern Mutual Life, which paid double, if Dr. Grey’s death was accidental  But, was it accidental?

111. Exceptions: Patient-Litigant What about a “Proof of Death” certificate?  The investigating officer’s report concluded that from the physical evidence, Dr. Grey’s car had drifted off to the right before colliding with the truck Did he fall asleep? Officer suggested the sheriff investigate the possibility of suicide  Grey’s widow filed a “Proof of Death” claim to get the proceeds from the insurance policy

112. Exceptions: Patient-Litigant What about a “Proof of Death” certificate?  Mrs. Grey claims Dr. Grey’s death was accidental  She also signed an authorization for the release of Dr. Grey’s medical information, which named 3 physicians, but did not name Dr. Rozansky, who was Grey’s psychiatrist  Northwestern found out about Dr. Rozansky, and it wanted to get Dr. Grey’s records from Rozansky and take Rozansky’s deposition  Mrs. Grey and Rozansky asserted the PPP!

113. Exceptions: Patient-Litigant What about a “Proof of Death” certificate?  Northwestern believes Dr. Grey committed suicide, which Mrs. Grey denied  Both trial court and appellate court conclude that Dr. Grey’s records with Dr. Rozansky do not have to be produced: The mere fact of filing a Proof of Death claim does not waive the PPP The law does not allow an insurer merely to speculate that, somewhere in an insured’s past life, there may be some indication of a suicidal tendency.

114. Exceptions: Patient-Litigant The Hammer versus the Scalpel  Hammer: “Your client has WAIVED privilege by instituting a civil lawsuit against my client!” “Your client has WAIVED privilege by making an issue of his mental or emotional condition!”  Scalpel: Has the patient “specifically tendered” a mental or emotional issue in the proceeding? Is the communication “directly relevant” to the specific mental or emotional issue tendered by the patient?

115. Exceptions: Psychotherapist/Court 2.Psychotherapist appointed by the court:  No privilege if the psychotherapist was APPOINTED BY THE COURT (or the Board of Prison Terms) to examine the patient (unless the appointment is made at the request of counsel for the defendant in a criminal proceeding to assist in advising the defendant on a plea of insanity or diminished capacity). California Evidence Code § 1017; In re Mark (2001) 94 Cal. App. 4 th 573

116. Exceptions: Psychotherapist/Court 2.Psychotherapist appointed by the court:  Why not? 1.Where the relationship is created by court order, there is not a sufficiently confidential relationship to warrant the protection of the privilege  Issues have probably all ready been disclosed to the government 2.The therapist’s conclusions as to the patient’s condition may be important to the resolution of the underlying issues

117. Exceptions: Psychotherapist/Court Interesting case:  Juvenile court referral for counseling does not constitute court-ordered examination of patient by psychotherapist within meaning of exception to the psychotherapist-patient privilege. In re Eduardo A. (1989) 209 Cal.App.3d 1038

118. Exceptions: Crime/Tort 3. Commission of crime or tort:  No privilege if the psychotherapist’s services were sought or obtained to enable or aid anyone to commit or plan to commit a crime or tort, or to escape detection or apprehension after the commission of a crime or a tort. California Evidence Code § 1018

119. Exceptions: Crime/Tort Interesting case: Rademan v. Superior Court (2001) 86 Cal. App. 4 th 447.  Facts: Underlying law = Medical Practice Act, which makes it illegal to prescribe controlled substances without good medical reason, to excessively prescribe controlled substances, to prescribe controlled substances to an addict, and to treat migraine headaches in violation of the Intractable Pain Treatment Act Dr. Rademan had two patients D.B. and W.N.

120. Exceptions: Crime/Tort Facts:  Ms. Lalich was a pharmacist with Walgreens  Patient W.N. admitted to Lalich that he was a drug addict, yet he had been prescribed Tylenol #4 and Vicodin ES by Dr. Rademan  Lalich calls Rademan to see if the prescriptions are legitimate, and he says they are  Lalich tells Rademan that W.N admitted to being a drug addict  Rademan tells Lalich to give W.N. what he wants

121. Exceptions: Crime/Tort Facts:  Lalich refuses to fill the prescriptions  Another Walgreens pharmacist, Gardner, told the Medical Board that she had told Rademen that patient D.B. had been getting prescriptions for the same medicine from other providers, but Rademan told her to keep filling D.B.’s prescriptions  On November 5, 1998, Lalich files a complaint against Rademen with the Medical Board of California

122. Exceptions: Crime/Tort Facts:  A doctor with the Medical Board’s enforcement unit stated that he would have to see the patient’s medical records to determine whether and why these substances were medically indicated.  Both W.N. and D.B. refused to sign authorizations consenting to the disclosure of their medical records  When served with a subpoena duces tecum, Rademan asserted the psychotherapist-patient privilege

123. Exceptions: Crime/Tort Facts:  The Medical Board then filed a petition to enforce its subpoena  Rademan filed an opposition to the petition  The trial court ruled that the Medical Board was entitled to the patient records  Rademan then files an application for writ of mandate or prohibition directing the trial court to vacate the order

124. Exceptions: Crime/Tort Key questions:  Does the trial court’s order violate the psychotherapist-patient privilege?  Is there an exception to the privilege that comes into play? Whose criminal activities?  Patient’s?  Psychotherapist’s? Rademan contends that the emphasis is on the patient’s motives for coming to treatment, so this statute only applies TO PATIENTS

125. Exceptions: Crime/Tort The Court’s decisions:  1.The crime/tort exception to the psychotherapist-patient privilege applies to crimes committed by the psychotherapist, patient, or both.  2.The pharmacists’ declarations provide prima facie evidence of a crime sufficient to justify in camera review of the patient records by the trial court

126. Exceptions: Breach of Duty 4. Breach of duty arising out of the psychotherapist-patient relationship:  No privilege as to a communication relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship. California Evidence Code § 1020  No reported cases!

127. Exceptions: Dangerous Patient 5.The dangerous patient exception:  No privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be: Dangerous to himself, or to the person or property of another, AND That disclosure of the communication is necessary to prevent the threatened danger.  California Evidence Code § 1024

128. Exceptions: Dangerous Patient An issue of privilege and confidentiality revisited!  Confidentiality: see now California Civil Code § 56.10(c)(19) The information may be disclosed, consistent with applicable law and standards of ethical conduct, … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

129. Exceptions: Dangerous Patient The dangerous patient exception:  Key questions to answer: Why do I believe my patient is dangerous?  I think my patient is dangerous because …  Think back to the “baby” case from Part I Is it necessary to contact a third party to prevent harm? Keep in mind that the reporting of child, elder, or dependent adult abuse is also an exception to the psychotherapist-patient privilege!

130. The Psychotherapist-Patient Privilege What kind of witness are you?

131. Witness? 3 TYPES of WITNESSES:  Percipient aka Fact:  Retained-expert:  The hybrid: Treating-Expert aka Percipient-Expert

132. Witness? Percipient or Fact witness:  Through the SENSES Saw? Heard? Touched?  Another approach: If the examination involves only the reading of words and symbols in a treatment record and no opinion about diagnosis, prognosis, or treatment justification, only statutory witness fee must be paid  CCP § 2020(f); Government Code § 68093

133. Witness? Percipient or Fact witness:  Lucky you!  For civil actions, you get: $35 per day and $.20 per mile for miles actually traveled, both ways  For grand jury testimony, you get: $12 per day and $.20 per mile for miles actually traveled, both ways  Government Code § 68093

134. Witness? Retained Expert:  Retained by one party in a lawsuit to give opinion testimony regarding the standard of care You MUST AGREE to being used as this type of a witness!

135. Witness? Treating-expert aka percipient-expert:  A non-party treating therapist who is asked to express: Opinion testimony, or Factual testimony regarding the past or present diagnosis or prognosis made by the therapist, or is asked the reasons for a particular treatment decision must be:  PAID AS AN EXPERT WITNESS!  CCP § 2034.430(b)

136. Witness? Treater versus Expert, Some Clinical and Legal differences: The treater has a clinical relationship with the patient  The expert does not The treater places the patient’s welfare above his or her own  The expert does not The treater is under a duty of confidentiality  The expert is not The treater empathizes with the client  The expert does not

137. Witness? Money, Money, Money  The therapist’s reasonable and customary hourly or daily fee must be paid: For any time spent by the therapist from the time specified in the deposition subpoena or From the time of the arrival of the therapist should that be later than that specified in the subpoena Until the therapist is dismissed from the deposition, whether or not the therapist is actually examined by any party  CCP § 2034.430(b)

138. Witness? Money, Money, Money  If the lawyer is late to the deposition, “ching-ching” for the therapist CCP § 2034.430(b)  Is the lawyer requiring you to be available for a whole day? ASK! Yes = demand a whole day’s fee No = demand at least a half a day’s fee

139. Witness? Money, Money, Money  Timing of the payment Payment must accompany the subpoena or be paid at the commencement of the proceeding!  CCP § 2034.450; Government Code § 68092(a)  No money = No testimony, unless YOU agree otherwise!

140. Witness? Money, Money, Money  If the examination of the witness TAKES LONGER than anticipated, the party giving notice of the proceeding MUST pay the balance of the expert’s fee within five days of RECEIPT of an ITEMIZED STATEMENT from the expert CCP § 2034.450(c) and Government Code § 68092.5(a)

141. Witness? Percipient-Expert aka Treating-Expert?  1.Did you SMELL alcohol on the patient’s breath?  2.Did the patient SAY he was not taking his medication?  3.Is the patient DEPRESSED?  4.Was the patient’s APPEARANCE unkempt?  5.Why do YOU BELIEVE your patient is depressed?

142. Witness? Percipient-expert aka treating-expert?  6.Why did you REFER your patient to a psychiatrist?  7.Did the child CRY when daddy’s name was mentioned?  8.Why did YOU see your patient two times a week instead of only one time per week?  9.Will your patient RECOVER from his depression?

143. Witness? Random Thoughts on Testifying:  Testifying = “Dentistry without anesthesia”! Deposition or courtroom?  Whose lawyer wants to talk?  What kind of witness am I?  Don’t be a double agent!  The Power of the Dependent Clause!  Remember, YOUR immersion in YOUR client’s experience does not mean YOU have actual knowledge of that experience.

144. Witness? Random Thoughts on Testifying:  Primum non nocere!  Deposition = It is not just a conversation; it is an examination!  Listen! It is ok to take time to collect your thoughts and to say I don’t understand the question.  Don’t guess! If you don’t know, you don’t know! AND IT IS OK TO SAY YOU DON’T KNOW OR YOU DON’T REMEMBER!

145. Witness? Random Thoughts on Testifying:  Beware of the words “never” and “always”!  Don’t allow the lawyer to misquote you! “Your previous testimony …” “Do you remember …”  “Dress shabbily, they notice the dress; dress impeccably, they notice the woman.” Coco Chanel

146. Establishing and Maintaining Proper Boundaries A Fork in the Road

147. Establishing and Maintaining Proper Boundaries A different approach; a didactic story This material is taken from the following article:  Slippery Slope: Violating the Ultimate Therapeutic Taboo by “Susan Rowan,” www.psychotherapynetworker.com/populartopics/ ethics/505 www.psychotherapynetworker.com/populartopics/ ethics/505

148. Establishing and Maintaining Proper Boundaries Susan’s Story (circa 1990’s):  Throughout Susan’s childhood, her mother had been ill with rheumatic heart disease and died when Susan was 18 years-old.  Susan’s sister, who was 20 years older than Susan, had been Susan’s surrogate mother and had paid for college and graduate school  Ultimately, Susan became an LCSW and was a well-respected clinician at a psychiatric hospital in the Midwest.

149. Establishing and Maintaining Proper Boundaries Susan’s Story (circa 1990’s):  She practiced for many years, and considered herself to be a caring and conscientious therapist, one completely dedicated to her patients.  Susan had been taught to “pooh-pooh” psychodynamic notions like transference and counter-transference.  She had never taken a course in professional boundaries or ethics, or been in therapy.

150. Establishing and Maintaining Proper Boundaries Susan’s Story (circa 1990’s):  She had recently ended a 10-year relationship with another woman.  She was depressed, numb, and disconnected, and was drinking alone at night.  Her work provided her only emotional sustenance.  The inpatient unit was fascinated with childhood trauma and Multiple Personality Disorder, and the clinicians there believed they were the only ones who could help kids with these problems.

151. Establishing and Maintaining Proper Boundaries Susan’s Story:  Cara, an “attractive” mother of twin boys, had been hospitalized following a suicide attempt.  Susan was assigned to do marital therapy with Cara and her husband.  Susan found Cara to be bright, sensitive, and a talented artist.  Cara had also been abused physically as a child.  Because of the number of abuse stories she heard, Susan had nightmares about kids being abused.

152. Establishing and Maintaining Proper Boundaries Susan’s Story:  Cara had been diagnosed with DID, and Susan found Cara’s diagnosis intriguing.  Susan extended the time for her preparation with Cara before the marital therapy sessions.  Susan and Cara took long walks on the hospital grounds.  Susan was protective of Cara and doubted the competence of the hospital staff to prevent her from harming herself.

153. Establishing and Maintaining Proper Boundaries Susan’s Story:  Susan left her family therapy supervisor and began working under a psychiatrist who specialized in trauma.  This psychiatrist confessed to Susan that he had had an affair with a patient, but that he thought it was ok to do so because Jung and Rank had had affairs with their patients too.

154. Establishing and Maintaining Proper Boundaries Susan’s Story:  Four months into therapy, Cara found out that her husband had had an affair and her marriage ended.  Shortly thereafter, Cara was discharged and Susan’s work with Cara at the hospital ended.

155. Establishing and Maintaining Proper Boundaries Susan’s Story:  One week later, Cara called Susan, while Susan was working, to discuss a personal problem and Susan took the call.  In time, Susan gave Cara her “beeper” number and within a couple of months they were talking on the telephone daily.  One day Cara called in a panic because she did not have any money to buy food for her children, so Susan called social services on Cara’s behalf.

156. Establishing and Maintaining Proper Boundaries Susan’s Story:  A month later, after taking an “alarming, drugged- sounding” call from Cara, Susan rushed to Cara’s house, finding her lying in a pool of blood. Cara’s injury was the result of a self-inflicted wound.  After summoning an ambulance, Susan stayed to clean up the blood so that Cara’s children would not be traumatized by the scene when they returned home after daycare.

157. Establishing and Maintaining Proper Boundaries Susan’s Story:  A few weeks later, Cara asked Susan for money for groceries. Susan was hesitant to give Cara money, but Susan did buy Cara 5 bags of groceries, believing she was helping Cara, just until Cara could make it on her own.  Then, Cara asked for money for rent and utilities, which Susan paid, believing she was helping Cara, just until Cara could make it on her own.  In return for Susan’s financial support, Cara gave Susan pictures she had drawn.

158. Establishing and Maintaining Proper Boundaries Susan’s Story:  Susan and Cara exchanged letters; discussed intimate thoughts about society, people, and relationships; had lunch together; played tennis together; took an art class together.  Susan found an apartment for Cara and her children, and even paid the increased rent on the unit.  Susan found herself becoming more and more attracted, in a romantic way, to Cara.

159. Establishing and Maintaining Proper Boundaries Susan’s Story:  Susan and Cara consumed alcohol together; they kissed and ultimately had a “few tentative sexual encounters,” but decided to just remain friends without sexual intimacy.  Susan drove Cara to some of Cara’s therapy sessions and babysat Cara’s kids when Cara was away.  Ultimately, Susan contributed almost $40,000 to supporting Cara and her children.

160. Establishing and Maintaining Proper Boundaries Susan’s Story:  Cara became more and more demanding, and Susan became more and more depressed.  When Susan stopped returning Cara’s telephone calls, Cara became increasingly angry, once leaving a message on Susan’s answering machine saying that she could “ruin” Susan.  Finally, depressed and on the edge of financial ruin, Susan tells Cara that she is going to end all contact and financial support in 2 months.

161. Establishing and Maintaining Proper Boundaries Susan’s Story:  On that “2 month date,” Cara was back in the hospital and informed the hospital about her and Susan’s sexual relationship.  Cara’s complaint was investigated by the hospital, and Susan told the truth about her relationship with Cara.  Ultimately, Susan lost her job, her reputation as a clinician, and her license for two years.

162. Establishing and Maintaining Proper Boundaries Susan’s Story:  After, Susan and Cara’s relationship ended, Cara continued to cut herself and had even less confidence in herself than she did when she first met Susan.  Cara had no hope for the profession helping her. So, you tell me, where did Susan go wrong?

163. Establishing and Maintaining Proper Boundaries Susan’s Allocution:  “I realize that some therapists reading this may feel sympathetic towards me, that I tangled naively with the sort of boundary-less client that we are frequently warned against. But the responsibility lies with me.  It was my responsibility, not hers, to know my profession’s norms and to preserve clinical boundaries.

164. Establishing and Maintaining Proper Boundaries Susan’s Allocution:  It was my responsibility to understand the power between a client and a therapist is never equal and that a so-called friendship is never appropriate after clinical work.  It doesn’t matter how provocative, vulnerable, or seductive a client is, it is my responsibility not to create pathological dependencies.” “Susan Rowan”

165. The Psychotherapist-Patient Privilege Nuts & Bolts of Subpoenas

166. Types of Subpoenas The Million-Dollar Question!  Is the patient WAIVING or ASSERTING the psychotherapist-patient privilege? The “good” lawyer versus the “bad” lawyer What does the patient’s lawyer think?  Get an authorization to discuss!  Remember, you have an obligation to testify truthfully!  Your role is that of an objective, detached clinician!

167. Types of Subpoenas Consider these other issues:  This places me in a conflicted relationship with my client! Dual relationship/standard of care argument California Health & Safety Code § 123115 argument  Testifying/disclosing records may cause my patient to terminate therapy  Would a generalized description of the therapy end your involvement?  How about just “participation and progress”?

168. Types of Subpoenas Get authorization, but there are some other things to review with the patient’s attorney:  Is the patient’s attorney going to bring a Motion to QUASH the subpoena? Yes? No?  Is the patient’s attorney going to Move the court for a PROTECTIVE ORDER? Yes? No?

169. Types of Subpoenas Don’t just let sleeping dogs lie, i.e., DO SOMETHING HELPFUL!  If they (lawyer or patient) “leave you hanging,” at a minimum ASSERT the psychotherapist-patient privilege to MAINTAIN the patient’s privacy rights! Key case: Inabnit v. Berkson (1988) 199 Cal. App. 3d 1230  “The failure of the plaintiff to take any action whatsoever to claim the psychotherapist-patient privilege constituted a waiver of the privilege.”

170. Types of Subpoenas Have you been PERSONALLY SERVED with a Subpoena?  Don’t EVER go on vacation!  California law requires a subpoena to be served PERSONALLY! California Code of Civil Procedure § 1987  Don’t believe me?

171. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  Abrams is a medical doctor; Bernbrock is his attorney  A party to a lawsuit attempted to serve Abrams with a subpoena for testimony in a civil action on January 21  The process server took the subpoena to Abrams’ medical office, but he was not there  Abrams’ secretary tells the process server to serve Bernbrock (substituted service)

172. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  The process server goes to Bernbrock’s office, and Bernbrock takes the paperwork, but he tells the process server that he cannot accept service on behalf of Abrams.  Bernbrock writes a letter to the lawyer who issued the subpoena, saying he got it but he is not accepting service on Abrams’ behalf  Abrams did not show up at the hearing on January 21

173. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  The lawyer who issued the subpoena institutes contempt charges against Abrams  Abrams is served with these papers  Abrams testified at the contempt hearing that he was never served with the original subpoena  The trial court found that Abrams had been served with the subpoena because his lawyer accepted the papers as Abrams’ lawyer

174. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  Abrams was found to be in contempt of court  His punishment: Four days in the county jail, or spend four consecutive Thursdays in the courthouse from 9:00 a.m. until 4:00 p.m., observing a trial, so that he can be “informed of the operation of the American judicial system” $500 in fines $500 in compensation to the other attorney Sound fair?

175. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  Abrams didn’t think so  He appeals the court’s decision, and the issue on appeal is whether it is valid to “substitute service” a non-party witness?  The Court of Appeal says “NO”; the witness must be personally served with the subpoena!  Why?

176. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  California law requires “STRICT STATUTORY COMPLIANCE” with the requirements for service of original process  CCP § 1987 requires PERSONAL SERVICE of the subpoena  The service of the subpoena on the witness is an original exercise of JURISDICTION over the witness

177. Types of Subpoenas In re Edward Abrams (1980) 108 Cal. App. 3d 685:  The penalty for disobeying a subpoena is serious, i.e., fines and imprisonment, so the law wants to make sure that the witness really received the paperwork

178. Types of Subpoenas The concept of PERSONAL SERVICE:  Personal service means ACTUAL DELIVERY of the papers in person  If the witness is FLEEING, the papers can be THROWN at him or her WHILE TELLING the witness what the papers are  The papers can be PLACED under the windshield wipers of a retreating automobile  Serving wife, as substitute for husband, who was 100 feet away from wife, was not personal service

179. Types of Subpoenas The concept of PERSONAL SERVICE:  Chapman v. Superior Court (1968) 261 Cal. App. 2d 194: Service on a doctor’s receptionist, who was not the practice’s custodian of records, was not PERSONAL SERVICE on the doctor! Since the doctor was not personally served, he could NOT be held in contempt for not appearing at a hearing

180. Types of Subpoenas The concept of PERSONAL SERVICE:  Sternbeck v. Buck (1957) 148 Cal. App. 2d 829 Service on your husband or wife at your residence is not personal service!

181. Types of Subpoenas The concept of PERSONAL SERVICE:  Good idea to evade service? Not usually A court may order a sheriff to break and enter a building or vessel to serve a subpoena. The subpoenaing party must provide a declaration showing that the witness is concealed therein and the materiality of the witness’ testimony.  CCP § 1988

182. Types of Subpoenas The concept of PERSONAL SERVICE:  Think you are safe at home? Guards at gated communities must allow a peace officer or licensed process server, upon proper identification, access for the purpose of serving a subpoena.  CCP § 415.21

183. Types of Subpoenas For the record:  Attorneys can SIGN and ISSUE subpoenas, but they have to use the approved forms  For example, see CCP § 2020.210(a)-(b)  DEFICIENCES in the PROCESS, whether in the PREPARATION of the subpoena or the SERVICE of the subpoena, INVALIDATE the subpoena! The proverbial “FORK IN THE ROAD”!  Go with the flow?  Rock the boat?

184. Types of Subpoenas What kind of subpoena have you been served with? The Big Six  1.Deposition Subpoena for Personal Appearance  2.Deposition Subpoena for Production of Business Records  3.Deposition Subpoena for Personal Appearance and the Production of Business Records

185. Types of Subpoenas What kind of subpoena have you been served with?  4.Civil Subpoena for Personal Appearance at Trial or Hearing  5.Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents at Trial or Hearing  6.Subpoena (Criminal or Juvenile)

186. Types of Subpoenas The Deposition Subpoena for Personal Appearance. Details:  1. Served PERSONALLY on the therapist (CCP § 2020.220(b)).  2. Served in SUFFICIENT TIME in advance of the time to testify to allow the therapist a reasonable time to travel to the place of the testimony (CCP § 2020.220(a)).

187. Types of Subpoenas Details:  3. PLACE of the deposition: Either within 75 miles of your residence, or In the county where the action is pending at a place within 150 miles of your residence  CCP § 2025.250(a)

188. Types of Subpoenas The Deposition Subpoena for Production of Business Records. Details:  1.Served PERSONALLY on the therapist or organization (CCP §2020.220(b)).

189. Types of Subpoenas Details:  2.Served in such a time as to command compliance NO sooner than twenty (20) days after the subpoena was issued, OR fifteen (15) days AFTER service, whichever is later (CCP §2020.410(c)).

190. Types of Subpoenas Details:  3.Served AT LEAST five (5) days after the subpoena and a “Notice to Consumer or Employee and Objection” form has been served, either personally or by mail, on the patient (CCP §1985.3).

191. Types of Subpoenas Hypothetical:  Rule: Twenty (20) days after ISSUANCE or fifteen (15) days after SERVICE, whichever is later, and at least five (5) days after subpoena and “Notice to Consumer” has been served, either personally or by mail, on the patient  Example: Subpoena issued: January 1, 2008 Subpoena + Notice served on patient: January 3, 2008 Subpoena served on therapist: January 10, 2008 Records demanded: January 21, 2008

192. Types of Subpoenas Details:  4.Accompanied by a WRITTEN RELEASE from the patient, or PROOF the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form (CCP §2020.410(d)).

193. Types of Subpoenas Details:  5.Accompanied by witness FEES ($15) allowed by law (California Evidence Code §§ 1563(b)(6) and CCP §2020.230(b)).

194. Types of Subpoenas The Deposition Subpoena for Personal Appearance and the Production of Business Records. Details:  1.Served PERSONALLY on the therapist or organization (CCP §2020.220(b)).  2.Served in SUFFICIENT TIME in advance of the time to testify to allow the therapist to locate and produce records and a reasonable time to travel to the place of the testimony (CCP §§ 1985.3(d), 2020.220(a)).

195. Types of Subpoenas Details:  3.Served at least five (5) days AFTER the subpoena and a “Notice to Consumer or Employee and Objection” form has been served, either personally or by mail, on the patient (CCP §1985.3(b)(3)).

196. Types of Subpoenas Details:  4.Accompanied by a WRITTEN RELEASE from the patient, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form (CCP §§ 1985.3(c) and 2020.410(d)).

197. Types of Subpoenas Details:  5.There is no requirement that a check for fifteen (15) dollars accompany this subpoena. Witnesses served with this subpoena must generally demand witness fees and mileage reimbursement from the subpoenaing party, who may elect to pay such fees at the time of the deposition.

198. Types of Subpoenas The Civil Subpoena for Personal Appearance at Trial or Hearing. Details:  1.Served PERSONALLY on the therapist or organization (CCP § 1987(a)).  2.Accompanied by the fee and mileage for one day’s appearance, IF DEMANDED by the therapist as a witness (CCP § 1987(a))

199. Types of Subpoenas Details:  3.Served in SUFFICIENT TIME in advance of the time to testify to allow the therapist a reasonable time for preparation and travel to the place of the testimony (CCP § 1987).

200. Types of Subpoenas Details:  4.Place of deposition: NO geographical limitation on this kind of subpoena! CCP § 1989 Plead hardship to subpoenaing attorney and request that your deposition be taken by videotape!

201. Types of Subpoenas The Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents at Trial or Hearing. Details:  1.Served PERSONALLY on the witness, i.e., the therapist or organization (CCP § 1987(a)).  2.Served in SUFFICIENT TIME in advance of the time to testify to allow the therapist a reasonable time for preparation and travel to the place of the testimony (CCP § 1987(a)).

202. Types of Subpoenas Details:  3.Accompanied by an AFFIDAVIT or DECLARATION specifying the exact matters to be produced, their materiality to the issues in the case, facts constituting good cause for their production, and that the witness has such documents in his or her possession or under his or her control (CCP §1985).

203. Types of Subpoenas Details:  4.Accompanied by a WRITTEN RELEASE from the patient, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form (CCP §§ 1985.3(c) and 2020.410(d)).

204. Types of Subpoenas Details:  5.There is NO requirement that witness fees accompany this subpoena. The witness fee, which is $35 per day for percipient witnesses, and the mileage fee, which is $.20 per mile to and from the courthouse, should be demanded by the witness at the time of service  (CCP § 1987(a))

205. Types of Subpoenas The Subpoena (Criminal or Juvenile). Details:  1.Witness and mileage fees are allowed and SHOULD BE SOUGHT from the attorney who issued the Subpoena (California Penal Code §1328(b))

206. Types of Subpoenas Details:  2.Served PERSONALLY on the therapist or organization by any person other than the defendant in a criminal action or delivered to the therapist by mail or messenger if, and only if, the therapist “acknowledges” receipt of the subpoena by contacting the attorney who issued the subpoena, either by telephone, by mail, or in person, and giving such attorney the therapist’s date of birth and driver’s license number (California Penal Code §1328d).

207. Types of Subpoenas Details:  3.Served AT LEAST five (5) days before any records are required to be produced (California Penal Code §1326(b) and California Evidence Code §1560(b)(1)).

208. The Psychotherapist-Patient Privilege “Hey dad, let’s play catch!”  1.There is no privilege because this is an administrative subpoena from the BBS.  2.There is no privilege because Mr. Smith, although meeting with you, never paid for any sessions.  3.There is no privilege because the kid is a dependent child.  4.There is no privilege because he told his wife about his depression.

209. The Psychotherapist-Patient Privilege “Hey dad, let’s play catch!”  5.You cannot assert the privilege because you are only a therapist.  6. You were served with a civil subpoena today and the trial is tomorrow.  7.There is no privilege because pain is a mental phenomenon, which means your client is making an issue of a mental condition because he is suing for pain and suffering.

210. The Psychotherapist-Patient Privilege “Hey dad, let’s play catch!”  8. There is no privilege because there is an “automatic” waiver of the privilege whenever a patient files a lawsuit.  9.There is no privilege because your client told her coworkers about her depression.  10.I’m subpoenaing you as a percipient witness and I want to question you about your treatment decisions for this patient. Relax & Play!