Roe v. Superior Court

• Decision Date: 26 April 1991
• Docket Number: No. B052812,B052812
• Court: California Court of Appeals Court of Appeals
• Parties: Laurie Keiko ROE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Clinton H. ROE, Real Party in Interest.

Page 380

280 Cal.Rptr. 380

229 Cal.App.3d 832

Laurie Keiko ROE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Clinton H. ROE, Real Party in Interest.

No. B052812.

Court of Appeal, Second District, Division 1, California.

April 26, 1991.

Jones, Mahoney & Brayton and Thomas C. Brayton, Claremont, for petitioner.

No appearance for respondent.

Vandenberg, Newell, Curtis & Nelson and Pamela Bourette-Schuur, Long Beach, for real party in interest.

ORTEGA, Associate Justice.

We conclude the psychotherapist-patient privilege does not apply in this civil action to information reported by a psychotherapist pursuant to the Child Abuse and Neglect Reporting Act. (Pen.Code, § 11171, subd. (b)). ¹ We deny the petition for a writ of mandate to compel the superior court to vacate the order requiring the limited deposition of petitioner's psychotherapist, and discharge the alternative writ.

BACKGROUND

This proceeding involves a tort action by real party in interest (Mr. Roe) against petitioner (Mrs. Roe) for defamation, malicious prosecution, and other injuries that resulted when Mrs. Roe's psychotherapist filed an allegedly false child abuse report against Mr. Roe. Briefly stated, the facts are as follows: During the couple's divorce proceedings, their minor son lived with Mrs. Roe. Mr. Roe had visitation rights, which he exercised. In May 1988, Mrs. Roe made allegedly defamatory statements to her psychotherapist, Dr. Doris DeHardt, which led Dr. DeHardt to file a suspected child abuse report that repeated Mrs. Roe's allegedly defamatory statements. Mr. Roe's visitation rights were restricted when the superior court granted Mrs. Roe a temporary restraining order. However, Mr. Roe's visitation rights were reinstated after an evidentiary hearing in the superior court failed to establish that child abuse had occurred. Similarly, a dependency petition filed by the Department of Children's Services in juvenile court was dismissed for lack of evidence.

Because this proceeding requires the careful balancing of Mrs. Roe's fundamental right to privacy and Mr. Roe's need for disclosure (Scull v. Superior Court (1988) 206 Cal.App.3d 784, 790-791, 254 Cal.Rptr. 24), we will first summarize the relevant competing interests that are protected by the Child Abuse and Neglect Reporting Act (§ 11164 et seq., hereinafter "Act"), the psychotherapist-patient privilege (Evid.Code, § 1010 et seq.), and the child abuse reporting exception to the psychotherapist-patient privilege (§ 11171, subd. (b)).

A. The Act

The purpose of the Act "is to protect children from abuse." (§ 11164.) The Act requires all persons participating in any investigation of suspected child abuse to "consider the needs of the child victim and ... do whatever is necessary to prevent psychological harm to the child victim." (§ 11164.)

In furtherance of this purpose, the Act requires psychotherapists to make telephone reports of known or suspected instances of child abuse immediately or as soon as practically possible after receiving such information within their professional capacity or scope of employment. (§§ 11165.8; 11166, subd. (a).) The Act also requires psychotherapists to file written reports within 36 hours of receiving such information (§ 11166, subd. (a)).

The psychotherapist's reporting duty arises when there is a "reasonable suspicion" of abuse. (§ 11166, subd. (a).) A "reasonable suspicion" exists if "it is objectively reasonable for a person to entertain such a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse...." (§ 11166, subd. (a).) The psychotherapist's failure to file a report required by the Act is a misdemeanor punishable by confinement in county jail for a term not to exceed six months, a fine of not more than $1,000, or both. (§ 11172, subd. (e).)

B. The Psychotherapist-Patient Privilege

In California, communications between the patient and psychotherapist are protected by both statute and the constitutional right to privacy. (Evid.Code, § 1014; Cal. Const., art. I, § 1; Scull v. Superior Court, supra, 206 Cal.App.3d at pp. 788, 790, 254 Cal.Rptr. 24.) The California Supreme Court has recognized "the growing importance of the p[s]ychiatric profession in our modern, ultracomplex society" (In re Lifschutz (1970) 2 Cal.3d 415, 421, 85 Cal.Rptr. 829, 467 P.2d 557), and has broadly construed the psychotherapist patient privilege in favor of the patient for public policy reasons. (People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668 P.2d 738.)

Evidence Code section 1014 provides in relevant part that "the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist...." ² The legislative intent behind this privilege is to promote the confidentiality that is essential for successful psychotherapy. "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 will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends." (Sen.Com. on Judiciary Com. to Evid.Code, § 1014, West's Ann.Evid.Code (1966) p. 621.)

Article I, section 1, of the California Constitution provides that all persons have an inalienable right to privacy. The psychotherapist-patient privilege is "an aspect of the patient's constitutional right to privacy. [Citations.]" ( People v. Stritzinger, supra, 34 Cal.3d at p. 511, 194 Cal.Rptr. 431, 668 P.2d 738.) "[A] patient's interest in keeping such confidential revelations from public purview, in retaining this substantial privacy, has deeper roots than the California statute and draws sustenance from our constitutional heritage." ( In re Lifschutz, supra, 2 Cal.3d at p. 431, 85 Cal.Rptr. 829, 467 P.2d 557.)

While the psychotherapist-patient privilege is "an aspect of the patient's constitutional right to privacy ... the right to privacy is not absolute, but may yield in the furtherance of compelling state interests." [Citations.] (People v. Stritzinger, supra, 34 Cal.3d at p. 511, 194 Cal.Rptr. 431, 668 P.2d 738.) "Even though a patient's interest in the confidentiality of the psychotherapist-patient relationship rests, in part, on constitutional underpinnings, all state 'interference' with such confidentiality is not prohibited." (In re Lifschutz, supra, 2 Cal.3d at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557; People v. Stritzinger, supra, 34 Cal.3d at p. 511, 194 Cal.Rptr. 431, 668 P.2d 738.)

C. The Child Abuse Reporting Exception to the Psychotherapist-Patient Privilege

By requiring psychotherapists to report known or suspected instances of child abuse that are revealed during therapy, the Legislature has required patients to yield their right to privacy to the state's compelling interest in protecting children from abuse. Section 11171, subdivision (b) provides that the psychotherapist-patient privilege does not apply "to information reported pursuant to [the Act] in any court proceeding or administrative hearing." (Emphasis added.) ³ When a psychotherapist is confronted with information which reasonably leads to the suspicion that child abuse has occurred, it is obvious that section 11171, subdivision (b), by encouraging the psychotherapist to reveal the patient's confidential communications, furthers the state's compelling interest to detect, prevent and prosecute child abuse. (See People v. Stritzinger, supra, 34 Cal.3d at p. 512, 194 Cal.Rptr. 431, 668 P.2d 738.)

But in this proceeding, the parties have not raised the issue of whether Dr. DeHardt acted properly in divulging Mrs. Roe's confidential communications by filing the suspected child abuse report. Mrs. Roe does not contend that section 11171 is inapplicable because Dr. DeHardt improperly filed an unauthorized report. Mrs. Roe's primary contention is that section 11171 does not apply "to civil tort litigation between former spouses where the litigated issue does not come within the purpose of the [Act]." Thus in determining the scope of permissible discovery herein, we will assume that Dr. DeHardt's report was required or authorized by the Act.

"When the right to disclosure clashes with a privilege, the court is required to 'indulge in a careful balancing' of the need for disclosure against the fundamental right of privacy. [Citation.] The scope of the privilege is determined by balancing the interests protected by shielding the evidence sought with those advanced by disclosure. [Citations.] When the balance swings in favor of disclosure, the court is required to limit the scope of discovery 'to the extent necessary for a fair resolution of the lawsuit.' [Citations.]" (Scull v. Superior Court, supra, 206 Cal.App.3d at pp. 790-791, 254 Cal.Rptr. 24.)

The discovery sought by Mr. Roe is necessary to authenticate Dr. DeHardt's suspected child abuse report, to confirm that the information contained in the report originated from Mrs. Roe, and to ascertain Dr. DeHardt's oral report to DCS social workers who investigated the matter. The state's interest in enabling litigants to conduct necessary discovery is not trivial. "The state has a significant interest in facilitating ' "... the ascertainment of truth and the just resolution of legal claims...." ' (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657-658 [125 Cal.Rptr. 553, 542 P.2d 977]; see also Caesar v. Mountanos [ (9th Cir.1976) ] 542 F.2d [1064], 1069.) Indeed, '[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.' (United States v. Nixon (1974) 418 U.S. 683, 709 [94 S.Ct. 3090, 3108, 41...