BILL ANALYSIS SENATE COMMITTEE ON JUDICIARY A David Roberti, Chairman B 1993-94 Regular Session 2 6 5 9 AB 2659 (Morrow) As amended June 7, 1994 Hearing date: August 9, 1994 Evidence Code ALA:rn PSYCHOTHERAPIST-PATIENT PRIVILEGE FOR MINORS: HOLDER OF THE PRIVILEGE HISTORY Source: California Association of Marriage and Family Therapists Prior Legislation: AB 3035 (1992) -- Chaptered Support: Unknown Opposition: None known Assembly Floor vote: Ayes 70 - Noes 0 KEY ISSUE SHOULD THE STATUTE PROVIDING THAT PROFESSIONALS PROVIDING SPECIFIED šMENTAL HEALTH SERVICES TO MINORS AGE 12 AND OVER HOLD THE šPSYCHOTHERAPIST-PATIENT PRIVILEGE BE REPEALED? SHOULD CERTAIN PERSONS BE ADDED TO THE LIST OF "PSYCHOTHERAPISTS" šUNDER THE PSYCHOTHERAPIST-PATIENT PRIVILEGE STATUTE? (More) AB 2659 (Morrow) Page 2 PURPOSE Existing law provides that there is no psychotherapist-patient šprivilege if 1) the patient is a child under the age of 16 and the špsychotherapist has reasonable cause to believe that the patient šhas been the victim of a crime and that disclosure of the šcommunication is in the best interest of the child. (Evidence Code š 1027.) Existing law provides that, "notwithstanding any other provision of šlaw, with respect to situations in which a minor has requested and šbeen given mental health treatment or counseling pursuant to šSection 25.9 of the Civil Code, the professional person rendering šsuch mental health treatment or counseling has the špsychotherapist-patient privilege." (Evidence Code 1014.5.) This bill would repeal this provision. Existing law defines persons considered to be "psychotherapists" as šused in the Evidence Code with respect to the špsychotherapist-patient privilege. (Evidence Code 1010.) This bill would add to these definitions "a person rendering šprofessional services pursuant to Section 6924 of the Family Code." The purpose of this bill is to repeal Evidence Code section 1014.5, šand to add specified persons to the definition of "psychotherapist" šfor the purpose of the psychotherapist-patient privilege. COMMENT 1. Stated purpose of this bill According to the sponsor, the California Association of Marriage and Family Therapists (CAMFT), this bill is necessary to bring existing law into harmony with current case šlaw by providing that the patient holds the privilege, even šwhen the patient is a minor and seeking outpatient treatment. CAMFT argues that, as currently written, Evidence Code section 1014.5 is contrary to other statutes regarding the rights of minors with regard to medical and mental health treatment. 2. Background Existing law generally provides that a patient, whether or not a party, has the privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the patient and psychotherapist if the privilege is claimed by š (More) AB 2659 (Morrow) Page 3 the holder of the privilege or a person authorized by the šholder to assert the privilege. The person who was the špsychotherapist at the time of the confidential communication šalso may claim the privilege, but may not claim the privilege šif there is no holder of the privilege in existence or if he or šshe is otherwise instructed by a person authorized to permit šdisclosure. (Evidence Code 1014.) This bill would repeal Evidence Code section 1014.5, which makes the professional rendering services pursuant to Family Code section 6924 a holder of the psychotherapist-patient privilege. Under Family Code section 6924, minors who are 12 years or older may consent -- without parental consent -- to outpatient treatment or residential shelter services (temporary or emergency shelter or support services) if: a) in the opinion of the attending professional the minor is mature enough to participate intelligently in the specified services; and b) the minor (i) would present a danger of serious physical or mental harm to self or others without the treatment, counseling or residential services or (ii) is a victim of incest or child abuse. As noted above, existing law provides there is no psychotherapist-patient privilege if 1) the patient is a child under the age of 16 and the psychotherapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child. (Ev. Code 1027.) Current law gives psychotherapists the standing to assert the psychotherapist-patient privilege both in sections 1014 and 1014.5; thus, repealing section 1014.5 would not repeal the general psychotherapist standing as a holder set forth in section 1014. In theory, however, because section 1014 makes the psychotherapist's privilege subject to the patient's wishes, the repeal of section 1014.5 would appear to limit the ability of a specified psychotherapists for minors to assert the privilege if the minor instructs the psychotherapist to disclose their communications. 3. Should the authority of a minor's psychotherapist, as specified, to assert the psychotherapist-patient privilege be repealed, making the minor alone the holder of the privilege? Arguably, because the patients affected by this bill would be minors aged 12 and over, there may be some legitimate concerns that these particular patients would be vulnerable to being coerced into waiving the psychotherapist-patient privilege; in such a case, if section 1014.5 is repealed, the psychotherapist would have no standing to assert the privilege on behalf of the š (More) AB 2659 (Morrow) Page 4 child -- even if the psychotherapist believed the disclosure šwould be harmful to the child -- unless the therapist believed šthe child, who would have to be under the age of 16, had been šthe victim of a crime and disclosure was in the best interests šof the child. SHOULD SPECIFIED MENTAL HEALTH PROFESSIONALS TREATING MINORS 12 YEARS OF AGE AND OLDER HAVE NO AUTHORITY TO ASSERT THE PSYCHOTHERAPIST-PATIENT PRIVILEGE? IF THE INTENT OF THIS BILL IS TO ENSURE THAT MINOR PATIENTS HOLD THE PSYCHOTHERAPIST-PATIENT PRIVILEGE, SHOULD NOT THIS BILL BE AMENDED TO ADD THIS PROVISION TO SECTION 1014.5 INSTEAD OF REPEALING THE SECTION AND MAKING THE MINOR THE SOLE HOLDER OF THE PRIVILEGE? COULD THIS BILL INADVERTENTLY HARM MINORS BY SUBJECTING THEM TO COERCION TO NOT ASSERT THE PSYCHOTHERAPIST-PATIENT PRIVILEGE? 4. Proposed additions to "psychotherapist" definition for purpose of the privilege This bill would add persons rendering professional services pursuant to Family Code section 6924 to the list of "psychotherapists" for purposes of the privilege under Evidence Code section 1010. It appears that the list in the Family Code provision is broader than the existing list of "psychotherapists" in Evidence Code section 1010. For example, this bill would add to section 1010 psychotherapists the "chief administrator" of a mental health treatment or counseling services agency or residential shelter services, as defined, as well as others not contained in the current list. ARE NOT ADMINISTRATORS OF FACILITIES INAPPROPRIATE FOR THE "PSYCHOTHERAPIST" LIST IN EVIDENCE CODE SECTION 1010? WHAT SPECIFIC PROFESSIONALS DO THE SPONSORS WANT TO ADD TO THE SECTION 1010 LIST NOT CONTAINED IN CURRENT LAW? SHOULD NOT THIS BILL BE AMENDED AND REFINED? 5. Support and Opposition According to the Assembly Judiciary Committee analysis: "The Capitol Resource Institute supports this bill because it protects the integrity of the family unit by providing that the minor, and not the psychotherapist, holds the psychotherapist-patient privilege. (More) AB 2659 (Morrow) Page 5 "The City and County of San Francisco opposes this bill based upon the belief it would repeal the psychotherapist-patient privilege and, therefore, have a chilling effect on a minor's willingness to seek counseling." *********