Lifschutz, In re

• Decision Date: 15 April 1970
• Docket Number: Cr. 14131
• Citation: 2 Cal.3d 415,467 P.2d 557,85 Cal.Rptr. 829
• Parties: , 467 P.2d 557, 44 A.L.R.3d 1 In re Joseph E. LIFSCHUTZ on Habeas Corpus.
• Court: California Supreme Court

Page 829

85 Cal.Rptr. 829

2 Cal.3d 415, 467 P.2d 557, 44 A.L.R.3d 1

In re Joseph E. LIFSCHUTZ on Habeas Corpus.

Cr. 14131.

Supreme Court of California In Bank.

April 15, 1970.

Severson, Werson, Berke & Bull, Kurt W. Melchior and Nicholas S. Freud, San Francisco, for petitioner.

Rosenthal & Leff, Irwin Leff, San Francisco, Wainer & Stone and Arnold J. Stone, Los Angeles, amici curiae on behalf of petitioner.

Keith C. Sorenson, Dist. Atty., James M. Parmelee, Chief Deputy Dist. Atty., and James W. Foley, Deputy Dist. Atty., for respondent.

Cesari & Werner and James B. Werner, San Francisco, in support of respondent.

TOBRINER, Justice.

Dr. Joseph E. Lifschutz, a psychiatrist practicing in California, seeks a writ of habeas corpus to secure his release from the custody of the Sheriff of the County of San Mateo. Dr. Lifschutz was imprisoned after he was adjudged in contempt of court for refusing to obey an order of the San Mateo County Superior Court instructing him to answer questions and produce records relating to communications with a former patient. Dr. Lifschutz contends that this underlying court order was invalid as unconstitutionally infringing his personal constitutional right of privacy, his right effectively to practice his profession, and the constitutional privacy rights of his patients. He also attacks the order, or more specifically, the statutory provisions which authorize the compulsion of his testimony in these circumstances, as unconstitutionally denying him the equal protection of the laws since, under California law, clergymen could not be compelled to reveal certain confidential communications under these circumstances.

The instant proceeding arose out of a suit instituted by Joseph F. Housek against John Arabian on June 3, 1968, for damages resulting from an alleged assault. Housek's complaint alleged that the assault caused him 'physical injuries, pain, suffering and severe mental and emotional distress.' Defendant Abrabian deposed the plaintiff and during the course of that deposition Housek stated that he had received psychiatric treatment from Dr. Lifschutz over a six-month period approximately 10 years earlier. Nothing in the record indicates that the plaintiff revealed the nature or contents of any conversation with or treatment by Dr. Lifschutz.

Arabian then subpenaed for deposition Dr. Lifschutz and all of his medical records relating to the treatment of Housek. (Code Civ.Proc. §§ 2016, 2019, subd. (a).) Although Dr. Lifschutz appeared for the deposition, he refused to produce any of his medical records and refused to answer any questions relating to his treatment of patients; the psychiatrist declined even to disclose whether or not Housek had consulted him or had been his patient. Although notified, neither plaintiff Housek nor his attorney were present at this deposition and neither has appeared in any of the subsequent hearings related to this proceeding. Housek has neither expressly claimed a psychotherapist-patient privilege, statutory or constitutional, nor expressly waived such a privilege.

In response to the psychiatrist's refusal to cooperate, defendant Arabian moved for an order of the superior court compelling the production of the subpenaed records and the answers to questions on deposition (Code Civ.Proc. § 2034, subd. (a)). Relying on the patient-litigant exception of section 1016 of the Evidence Code, the superior court determined that because the plaintiff, in instituting the pending litigation, had tendered as an issue his mental and emotional condition, the statutory psychotherapist-patient (Evid.Code, § 1014) privilege did not apply. On December 20, 1968, the court therefore ordered Dr. Lifschutz to comply with the subpena and to answer questions posed during deposition. ¹ On January 15, 1969, defendant attempted to continue with the deposition of Dr. Lifschutz as ordered by the superior court, but petitioner remained resolute in his refusal to respond or produce records. Thereafter, petitioner sought a writ of prohibition to restrain the superior court from enforcing its order; the writ was denied by the Court of Appeal, a petition for hearing was denied by this court, and finally a petition for certiorari to the United States Supreme Court was similarly denied.

The superior court held another hearing on December 5, 1969; when Dr. Lifschutz again refused to comply with the order, the court adjudged him in contempt (Code Civ.Proc. § 1209, subd. 5) ² and ordered him to be confined in the custody of the Sheriff of San Mateo County (Code Civ.Proc. § 1219). After the Court of Appeal on December 8, 1969, denied without opinion a petition for habeas corpus, this court agreed to hear the case and ordered the petitioner released on his own recognizance pending our determination of the cause.

Dr. Lifschutz presents a novel challenge, attempting to raise far-reaching questions of constitutional law. From the affidavits and correspondence included in the record we note that a large segment of the psychiatric profession concurs in Dr. Lifschutz's strongly held belief that an absolute privilege of confidentiality is essential to the effective practice of psychotherapy.

We recognize the growing importance of the psychiatric profession in our modern, ultracomplex society. The swiftness of change--economic, cultural, and moral--produces accelerated tensions in our society, and the potential for relief of such emotional disturbances offered by psychotherapy undoubtedly establishes it as a profession essential to the preservation of societal health and well-being. Furthermore, a growing consensus throughout the county, reflected in a trend of legislative enactments, ³ acknowledges that an environment of confidentiality of treatment is vitally important to the successful operation of psychotherapy. California has embraced this view through the enactment of a broad, protective psychoterapist-patient privilege.

The nature of the actual interest involved in this case can only be properly evaluated against the California statutory background. Although petitioner, in pressing for judicial acceptance of a genuine and deeply held principle, seeks to cast the issue involved in this case in the broadest terms, we must properly address, in reality, a question of more modest dimensions. We do not face the alternatives of enshrouding the patient's communication to the psychotherapist in the black veil of absolute privilege or of exposing it to the white glare of absolute publicity. Our choice lies, rather, in the grey area.

Properly viewed, the broadest issue before our court is whether the Legislature, in attempting to accommodate the conceded need of confidentiality in the psychotherapeutic process with general societal needs of access to information for the ascertainment of truth in litigation, has unconstitutionally weighted its resolution in favor of disclosure by providing that a psychotherapist may be compelled to reveal relevant confidences of treatment when the patient tenders his mental or emotional condition in issue in litigation. For the reasons discussed below, we conclude that, under a properly limited unterpretation, the litigant-patient exception to the psychotherapist-patient privilege, at issue in this case, does not unconstitutionally infringe the constitutional rights of privacy of either psychotherapists or psychotherapeutic patients. As we point out, however, because of the potential of invasion of patients' constitutional interests, trial courts should properly and carefully control compelled disclosures in this area in the light of accepted principles.

I. The order requiring Dr. Lifschutz to answer appropriate questions concerning communications with a patient does not infringe the psychotherapist's constitutional rights.

The primary contention of Dr. Lifschutz's attack on the judgment of contempt consists of the assertion of a constitutional right of a psychotherapist to absolute confidentiality in his communications with, and treatment of, patients. Although, as we understand it, the alleged right draws its substance primarily from the psychological needs and expectations of patients, Dr. Lifschutz claims that the Constitution grants him an absolute right to refuse to disclose such confidential communications, regardless of the wishes of a patient in a particular case. ⁴ In separating the interest of the psychotherapist from that of the patient for the purposes of analyzing this contention, we conclude that the compelled disclosure of relevant information obtained in a confidential communication does not violate any constitutional privacy rights of the psychotherapist.

Petitioner founds his far-reaching constitutional claim on the United States Supreme Court decision of Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678. In Griswold the court struck down a state criminal statute prohibiting the use of contraceptives as an unconstitutional infringement of a marital right of privacy. Although, as we explain in section III, infra, the Griswold decision is relevant to an evaluation of the general scope of permissible intrusions into confidential relations between a patient and a psychotherapist, the decision does not support Dr. Lifschutz's claim for a constitutional right independent of the rights of individual patients.

Dr. Lifschutz apparently seeks support for his position in the fact that the defendants in Griswold were a licensed physician and the head of a birth control clinic who had counselled married couples on the use of contraceptives, rather than the married individuals themselves. The Griswold court quite explicitly explained, however, that the constitutional privacy interests and rights underlying its decision were those of the 'patients' of the birth control clinic, rather than of physicians. 'We think that appellants have standing to raise the constitutional rights of the married people with whom they had a...