Driver did not waive doctor-patient privilege by admitting he was on medication

Fish v. Superior Court of San Diego County, 2019 WL 6337434 (Cal.App. 4 Dist.) (Cal.App. 4 Dist., 2019)


Mason Fish, charged with gross vehicular manslaughter while intoxicated filed a petition seeking to prevent trial court from reviewing his psychotherapy treatment records and to require trial court to grant his motion to quash the subpoenas for those records based on the psychotherapist-patient privilege.

 The  San Diego County Superior Court denied his motion to quash the subpoenas of his psychotherapist’s treatment records.

The Court of Appeal held that: Fish  did not waive the privilege by disclosing to law enforcement officers who responded to scene of vehicle collision that his psychotherapist had prescribed him certain medications, and the prosecution’s claimed compelling need for treatment records to effectively prosecute Fish did not warrant invasion into privilege.

Facts: Mason Fish was involved in a fatal motor vehicle collision and charged with three counts of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a)). Fish’s toldlaw enforcement officers after the collision that he was under the care of a psychotherapist who had prescribed him certain antidepressant and antipsychotic medications.

The District Attorney  subpoenaed the psychotherapist’s  treatment records. Fish filed a motion to quash the subpoenas because they sought information protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.) The District Attorney argued that Fish had waived this privilege when he revealed to law enforcement that he was taking prescription medication. The court denied Fish’s motion and indicated it would review the psychotherapist’s treatment records in camera to determine if Fish and his therapist discussed whether the medications might affect Fish’s driving.

Fish petitioned for a writ preventing the trial court from reviewing his psychotherapy treatment records, and requiring the trial court to grant his motion to quash the subpoenas. The Court of Appeal issued the requested writs.

Communication between a psychotherapist and patient are privileged

Confidential communications between a psychotherapist and patient are privileged. (§ 1014; Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014, 135 Cal.Rptr.2d 532 (Story); § 917 [communications “in the course of the … psychotherapist-patient … relationship” are “presumed to have been made in confidence”].) Section 1014 provides in part that a “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.” “The psychotherapist-patient privilege has been recognized as an aspect of the patient’s constitutional right to privacy.” (People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668 P.2d 738 (Stritzinger).)

The psychotherapist-patient privilege rests on the premise “ ‘that an environment of confidentiality of treatment is vitally important to the successful operation of psychotherapy.’ ” (Story, supra, 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.) The California Supreme Court has “recognized ‘the public interest in supporting effective treatment of mental illness and … the consequent public importance of safeguarding the confidential character of psychotherapeutic communication.’

Burden on patient to show privilege applies

“Where the psychotherapist-patient privilege is claimed as a bar to disclosure, the claimant has the initial burden of proving the preliminary facts to show the privilege applies.” (Story, supra, 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.) “ ‘Preliminary facts’ means the existence of a psychotherapist-patient relationship, ‘that is, that the person [the claimant] consulted was a “ ‘psychotherapist’ ” within the meaning of … section 1010, and [the claimant] was a “ ‘patient’ ” within the meaning of … section 1011.’ ” (Story, at p. 1014, 135 Cal.Rptr.2d 532)

Waiver of the privilege

Section 912 provides that “the right of any person to claim [the] … psychotherapist-patient privilege … is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.”  “What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege.” (Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052, 233 Cal.Rptr. 825.)

Any waiver must be narrowly construed and limited to matters ‘as to which, based upon [the patient’s] disclosures, it can reasonably be said [the patient] no longer retains a privacy interest.’ ” (San Diego Trolley, supra, 87 Cal.App.4th at p. 1092, 105 Cal.Rptr.2d 476.) Even when there has been a “waiver of a statutory privilege, a patient retains the more general right to privacy protected by the state and federal Constitutions.” (San Diego Trolley, supra, 87 Cal.App.4th at p. 1092, 105 Cal.Rptr.2d 476.)

Psychotherapist-patient privilege applies -Fish meets burden of proof

The  psychotherapist-patient privilege applies  because the District Attorney is seeking to discover presumptively confidential communications between Fish and his psychotherapist. (Story, supra, 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532; §§ 917, 1010, 1011.)  Fish has met his initial burden of proof, and the burden shifts to the District Attorney to show the requested materials fall outside the presumption of confidentiality, fall within a statutory exception to the privilege, or that Fish waived the privilege by disclosing a significant part of his communications with his psychotherapist. (Story, at p. 1015, 135 Cal.Rptr.2d 532.)

No waiver or compelling need by the District Attorney for patient records

The fact that Fish disclosed to law enforcement officers that his psychotherapist had prescribed certain antidepressant and antipsychotic medications is legally insufficient to waive the privilege that attaches to Fish’s communications with his therapist about those prescriptions and diagnoses.

The Supreme Court has ‘made it clear that the mere disclosure of the existence of the psychotherapist-patient relationship does not reveal a significant part of the communication and thus does not constitute a waiver.Even when a patient has revealed the purpose of psychiatric treatment, no waiver of the privilege occurs.

The privilege is not overridden by the People’s state constitutional right to due process. The People’s ‘right to truth-in-evidence’ under article I, section 28, [former] subdivision (d) [now subdivision, (f)(2) ] of the California Constitution does not ‘affect any existing statutory rule of evidence relating to privilege ….’ Implicit therein is a constitutional determination that the privilege does not undermine the integrity or reliability of the truth-finding function of legal proceedings.”


The Court issued writs. (1) prohibiting the trial court from reviewing Fish’s psychotherapy records, and (2) directing the trial court to vacate its June 5, 2019 order denying Fish’s motion to quash and to enter a new order granting the motion.


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