Most are aware that there is a psychotherapist-patient privilege. In plain English, people can generally talk to their licensed counselor, therapist, psychologist, psychiatrist, etc. for the purpose of protecting their mental health and know that whatever they say is confidential – it won’t and can’t be revealed or used against them in Court. Confidential communications between a psychotherapist and patient are generally privileged pursuant to Evidence Code §1014 and Cal. Const. Art. I, Sec. 1. In pertinent part, California Evidence Code sec. 1014 provides 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 if the privilege is claimed by:
(a) The holder of the privilege.
(b) A person who is authorized to claim the privilege by the holder of the privilege.
(c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.”
There are codified exceptions to this privilege. For example, if the plaintiff to a civil action makes his or her emotional or mental condition an issue in litigation, the privilege does not apply (Evidence Code sec. 1016). As alluded above, the privilege can also be waived by the patient. However, the exceptions are extremely rare and almost always within the complete control of the patient. This can be especially frustrating when a couple participates in conjoint counseling for the good of their relationship and one spouse/partner wants to prove to the court what was “confessed” by the other during therapy.
However, there is one oft overlooked exception to this general rule that can oftentimes be exercised in family law cases where one of the parties participated in conjoint counseling.
Quite simply, there is no privilege to commit perjury. As explained below, the psychotherapist-patient privilege does not supersede the court’s goal of preserving the integrity of the truth seeking process, not does it shield a perjurer from impeachment.
California’s courts have unambiguously held that the privilege may not protect a psychotherapy patient’s perjury. The psychotherapist-patient privilege “does not purport to prohibit all incursion into individual privacy but rather that any such intervention must be justified by a compelling interest.” White v. Davis (1975) 13 Cal.3d 757, 775. “[T]he interest in ascertaining the truth in judicial proceedings has been held to be sufficiently substantial to justify the disclosure of much confidential material, including communications to a psychotherapist”. Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 843 (emphasis added), citing In re Lifschutz (1970) 2 Cal.3d 415, (overruled in part on other grounds in Jacob B. v. County of Shasta (2007) 40 Cal.4th 948).
The psychotherapist-patient privilege may yield in the furtherance of compelling state interests. People v. Caplan, (1987), 193 Cal.App.3d 543. “[T]he necessity in judicial proceedings for ascertaining the truth is sufficiently compelling to justify disclosure of constitutionally protected information when narrowly limited to information directly relevant to the issues”. Cutter, supra, 183 Cal.App.3d at 843.
“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 (1970), 2 Cal.3d 415, 432. “In the past this state interest [of facilitating the ascertainment of truth in connection with legal proceedings] has been viewed as substantial enough to compel the disclosure of a great variety of confidential material.” Id., citing Chronicle Publishing Co. v. Superior Court (1960) 54 Cal.2d 548, 574; Green v. Superior Court (1963) 220 Cal.App.2d 121; Tatkin v. Superior Court (1958) 160 Cal.App.2d 745, 753-54.
In summation, the case law is clear: when the interest in maintaining psychotherapist-patient confidentiality conflicts with the court’s ability to receive honest information from a witness, the court’s truth-seeking process takes priority.
