Scull v. Superior Court

• Decision Date: 16 December 1988
• Docket Number: No. B035045,B035045
• Citation: 254 Cal.Rptr. 24,206 Cal.App.3d 784
• Court: California Court of Appeals Court of Appeals
• Parties: Alvis Joe SCULL, Petitioner, v. SUPERIOR COURT of the State of California, County of Santa Barbara, Respondent. PEOPLE of the State of California, Real Party in Interest.

Page 24

254 Cal.Rptr. 24

206 Cal.App.3d 784

Alvis Joe SCULL, Petitioner, v. SUPERIOR COURT of the State of California, County of Santa Barbara, Respondent.

PEOPLE of the State of California, Real Party in Interest.

No. B035045.

Court of Appeal, Second District, Division 6, California.

Dec. 16, 1988.

[206 Cal.App.3d 786] S.R. Balash, Jr., Santa Barbara, for petitioner.

Linda F. Robertson, Burlingame, as amicus curiae on behalf of petitioner.

No appearance for respondent.

Thomas W. Sneddon, Jr., Dist. Atty., Gerald McC. Franklin, Sr. Deputy Dist. Atty., for real party in interest.

McKenna, Conner & Cuneo and Aaron M. Peck, Daniel H. Willick, Royanne T. Kashiwahara, Los Angeles, as amici curiae.

OPINION AND ORDER

STEVEN J. STONE, Presiding Justice.

Alvis Joe Scull (hereafter referred to as petitioner) seeks relief by way of a writ of mandate to compel respondent superior court to set aside its order allowing representatives of the district attorney's office to contact petitioner's former patients. We

find that the respondent [206 Cal.App.3d 787] superior court order violated the psychotherapist-patient privilege (Evid.Code, § 1010 et seq.) and shall grant the petition.

FACTS

On March 28, 1988, petitioner was arrested and charged with four counts of sexually molesting a teen-aged patient. (Pen.Code, § 288, subd. (a).) Petitioner, aged 71, had retired from the practice of psychiatry and maintained his patient records in his residence.

Immediately following petitioner's arrest, the Sheriff of Santa Barbara County issued a press release which included details of the charges against petitioner and requested people who might have information concerning any offenses committed by petitioner upon any of his other patients to contact the authorities. Local newspapers, television and radio stations broadcasted the press release. Shortly thereafter, six former patients came forward to give varying accounts to the authorities of having been sexually molested during the course of treatment as teen-aged patients of petitioner. In addition, the foster parent of another patient told the police that her child had been molested by petitioner while under his care.

On May 16, 1988, a search warrant was served upon petitioner's residence. Information concerning petitioner's patients was seized and placed in possession of a special master. (Pen.Code, § 1524.)

On June 1, 1988, the district attorney moved to have the names, telephone numbers, and addresses of petitioner's female patients, for the past 10 years, released to him. He sought this information in order to contact the patients and determine whether any of them had been sexually abused or molested during treatment sessions.

On June 6, 1988, over petitioner's objection founded upon the psychotherapist-patient privilege, the court conditionally granted the district attorney's motion. The special master was ordered to make a list of the names, ages, addresses, and telephone numbers of all female patients of Doctor Scull for the past 10 years. In an effort to minimize the intrusion into the privacy of petitioner's former patients, the court required that a psychologist or psychiatrist be appointed to initiate any contacts. A former patient would be informed, among other things, that: (a) the caller is a psychologist or psychiatrist employed by the district attorney for the purpose of investigating allegations against Doctor Scull of molestation; (b) she has the right to make no statements, as such information is privileged; (c) if she should choose to discuss the matter, such confidential information would be kept from all save Doctor Scull and his attorney; and (d) she may elect to become a witness, and to that extent the information may become public.

Petitioner seeks a writ of mandate. He contends that the names, telephone numbers, and addresses of his patients are privileged under Evidence Code section 1014. ¹ He asserts that the above rule applies even though a court-appointed therapist will be making the initial contact with the patients and will not, unless instructed otherwise, divulge information obtained.

DISCUSSION

Our society recognizes it to be a denial of a person's right of privacy to allow the proponent of discovery an unfettered right to conduct an inquisition into a deponent's innermost confidences. (Britt v. Superior Court (1978) 20 Cal.3d 844, 856, 143 Cal.Rptr. 695, 574 P.2d 766.) Thus, there are a number of evidentiary privileges that serve to limit a proponent's right to full disclosure. (E.g., 2 Hogan, Modern Cal. Discovery One such limitation is contained in Evidence Code section 1014. This measure affords a broad privilege that prevents the disclosure of communications made between a patient and a psychotherapist. The statutory privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist. (In re Lifschutz, supra, 2 Cal.3d at pp. 434-435, 85 Cal.Rptr. 829, 467 P.2d 557.) "The patient's innermost thoughts may be so frightening, embarrassing, shameful or morbid that the patient in therapy will struggle to remain sick, rather than to reveal those thoughts even to himself. The possibility that the psychotherapist could be compelled to reveal those communications to anyone ... can deter persons from seeking needed treatment and destroy treatment in progress." (Caesar v. Mountanos (9th Cir.1976) 542 F.2d 1064, 1072 (dis. opn. of Hufstedler, J.) citing Katz, et al., Psychotherapy, Psychoanalysis and the Law (1967) pp. 726-727.)

(4th ed. 1988) § 12.1 et seq., pp. 54-190.)

Judicial deference to the patient-psychotherapist privilege also promotes societal weal. "[E]ffective treatment reduces the costs of antisocial behavior attributable to mental illness." (Smith, Constitutional Privacy in Psychotherapy (1980) 49 Geo.Wash.L.Rev. 1, 41 (hereafter Privacy in Psychotherapy); see also In re Zuniga (6th Cir.1983) 714 F.2d 632, 639.)

It is recognized that a psychotherapist's capacity to provide effective treatment requires that a patient " '... bare his entire self, his dreams, his fantasies, his sins, and his shame....' " (Taylor v. United States (D.C.Cir.1955) 222 F.2d 398, 401, fn. omitted.) The accurate diagnosis and effective treatment in psychotherapy are greatly dependent upon conditions of trust and confidentiality between patient and therapist. (Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1040-1041.) "Essential to psychotherapy are confidential personal revelations about matters which the patient is normally reluctant to discuss. Frequently, a patient in analysis will make statements to his psychiatrist which he would not make even to the closest members of his family. (Slovenko, Psychiatry and a Second Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 184-185.) Revelations often concern the most intimate and embarrassing details of a patient's life, and their public exposure may well strip him of much of his own sense of human dignity." (Lora v. Board of Ed. of City of New York (E.D.N.Y.1977) 74 F.R.D. 565, 571.)

Indeed, the legislative intent behind Evidence Code section 1014 is clearly in accord with the proposition that confidentiality is the essential ingredient 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." (See Sen.Judiciary Com. com. to Evid.Code, § 1014, West's Ann.Evid.Code (1966) p. 621.)

It is well-settled in California that the mere disclosure of the patient's identity violates the psychotherapist-patient privilege. (Smith v. Superior Court (1981) 118 Cal.App.3d 136, 141-142, 173 Cal.Rptr. 145; see also Lora v. Board of Ed. of City of New York, supra, 74 F.R.D. at p. 580; but cf. In re Zuniga, supra, 714 F.2d at pp. 640-641.) The rationale for this rule is that the harm to the patient's interest of privacy is exacerbated by the stigma that society often attaches to mental illness. (See Developments in the Law--Civil Commitment of the Mentally Ill (1974) 87 Harvard L.Rev. 1190, 1200.) As noted by one commentator: "a person in psychotherapy, by and large, visits his psychiatrist with the same secrecy that a man goes to a bawdy house." (Slovenko, Psychiatry and a Second Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 188, fn. 46.) In Communications between the patient and psychotherapist are also protected by the constitutional right of privacy. (Caesar v. Mountanos, supra, 542 F.2d at p. 1072; Hawaii Psychiatric Soc., Dist. Branch v. Ariyoshi (D.Hawaii 1979) 481 F.Supp. 1028, 1038; see Privacy in Psychotherapy, supra, 49 Geo.Wash.L.Rev. 1.) "[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.) Moreover, in California a citizen's right to privacy is independently protected by our state Constitution. Article I, section 1, of the California Constitution provides that all persons have an inalienable right to privacy. (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130, 164 Cal.Rptr. 539, 610 P.2d 436.)

short, the [206 Cal.App.3d 790] disclosure that an individual is seeing a therapist may well serve to discourage any treatment and thereby interfere with the patient's freedom to seek and derive the benefits of psychotherapy. "When a...