holding that it was “error to admit [the psychotherapist’s] testimony concerning” a report that was not actually required by the statute, and thus the information erroneously reported retained its status as privileged
How later courts described this case
- holding that it was “error to admit [the psychotherapist’s] testimony concerning” a report that was not actually required by the statute, and thus the information erroneously reported retained its status as privileged
- holding that a report by a psychotherapist—made under a mis- taken belief that the report was required—did not vitiate privilege as to the matters reported
- forced disclosure of patients' names by physician, specifically including psychiatrist or psychologist, implicates privacy interests
- cases holding psychotherapist/patient privilege abrogated in criminal child abuse prosecutions by child abuse reporting statutes only to extent permitting evidentiary use of information contained in initial abuse report
Written by the judges who cited it.
The opinion
RICHARDSON, J.
I respectfully dissent.
The majority finds prejudicial error was committed in admitting (1) Dr. Walker’s testimony regarding defendant’s admissions to him that he had sexually abused his stepdaughter Sarah, and (2) Sarah’s own preliminary hearing testimony confirming that such abuse had occurred. In my view, both Dr. Walker’s and Sarah’s testimony were admissible and fully support defendant’s conviction of child molestation.
1. Dr. Walker’s Testimony
The majority concedes that Dr. Walker’s initial report regarding his interview with Sarah was not rendered inadmissible by the psychotherapist-patient privilege. (See Evid. Code, §§ 1014, 1027; Pen. Code, § 11171, subd. (b).) Yet the majority holds that Dr. Walker’s supplemental report, discussing his interview with defendant himself, was protected by that privilege. With due respect, this holding is patently incorrect.
The Child Abuse Reporting Act (Pen. Code, § 11165 et seq.) unequivocally provides that the psychotherapist-patient privilege shall not apply “to *527 information reported pursuant to” the act. (Pen. Code, § 11171, subd. (b).) Thus, if Dr. Walker’s supplemental report was made “pursuant to” the act’s provisions, the report was unprivileged and Dr. Walker was free to testify regarding its contents.
The act’s provisions impose on psychotherapists such as Dr. Walker an affirmative duty to report to a child protective agency all known or suspected instances of child abuse, even though they may learn of such incidents through otherwise confidential communications with their patients. Thus, section 11166, subdivision (a), provides in pertinent part that “any . . . medical practitioner [defined in § 11165, subd. (i), to include psychotherapists] . . . who has knowledge of or observes a child in his or her professional capacity . . . whom he or she knows or reasonably suspects has been the victim of child abuse shall report [by telephone] the known or suspected instance of child abuse to a child protective agency immediately . . . and send a written report thereof within 36 hours of receiving the information concerning the incident.”
The majority holds that, because Dr. Walker initially reported Sarah’s own communications with him regarding defendant’s misconduct, Dr. Walker’s statutory obligations were somehow satisfied and permanently discharged and, accordingly, the psychotherapist-patient privilege was revived. It is claimed that the privilege thereafter protected any further disclosure regarding the same incidents of sexual abuse.
With deference, I suggest that the majority’s interpretation of the Child Abuse Reporting Act is erroneous. Under section 11171, subdivision (b), the privilege is rendered inapplicable to any information “reported pursuant to” the act. The provision is not limited merely to information required to be reported thereunder. Certainly Dr. Walker was permitted (if indeed, not required) to file a supplemental report which corroborated the victim’s unsubstantiated charges by reporting admissions from the alleged offender himself. How can it reasonably be argued that such a critical follow-up report, confirming what otherwise might be deemed mere fantasy or fabrication by a young child, was not issued “pursuant to” the act? In my view, in order to carry out the act’s salutary purposes, such confirmatory reports should be encouraged and the information contained therein made freely available for use in criminal proceedings. I have no doubt whatever that this was the legislative intent underlying section 11171, subdivision (b).
2. Sarah’s Preliminary Hearing Testimony
Section 1291, subdivision (a), of the Evidence Code permits the admission of preliminary hearing testimony of a witness who is “unavailable” as a *528 witness at trial. A witness is deemed “unavailable" if he or she is “unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.” (Evid. Code, § 240, subd. (3).) It may be seen that the relevant statutes do not purport to require that the showing of unavailability by reason of mental illness or infirmity must be established by expert medical or psychiatric testimony. Indeed, the majority readily concedes that no appellate court decision requires such testimony as a precondition to establishing unavailability. (Ante, p. 517.)
In the present case, Sarah’s mother testified at length regarding Sarah’s deteriorating mental health. As aptly described by Justice Compton in his opinion for the unanimous Court of Appeal, Second Appellate District, in this case:
“The court relied upon testimony of Sarah’s mother who stated that Sarah was hospitalized at a psychiatric center for treatment, that she was emotionally unstable, prone to suicide attempts and that her previous experience of incarceration as a recalcitrant witness during the preliminary hearing had left her extremely fearful of returning to a court to testify.
“The mother also related a several year history of audio and visual hallucinations experienced by the victim which would be exacerbated by stressful situations such as testifying in the present case. The trial court also read the testimony of Sarah as contained in the transcript of the preliminary hearing.
“Evidence Code section 240, subdivision (a)(3), defines ‘unavailable’ as a witness as ‘Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.’ Under the circumstances of this case there was no abuse of discretion. It is clear that the victim was suffering from an existing mental infirmity and would be further disabled if subjected to the rigors of a trial. It was not necessary to establish this infirmity by the testimony of a physician.
“ ‘[Ijllness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness’ attendance, or his testifying, relatively impossible and not merely inconvenient. However, we cannot say just what illness or infirmity must be shown or the degree of its severity, leaving that determination to a trial court’s exercise of discretion.’ (People v. Gomez (1972) 26 Cal.App.3d 225, at p. 230 [ 103 Cal.Rptr. 80 ].)”
Indeed, the preliminary hearing transcript itself fully supports the testimony of Sarah’s mother regarding Sarah’s mental infirmity and consequent unavailability at trial. Sarah was a very uncooperative witness throughout *529 her examination, giving contradictory or ambiguous responses and refusing to elaborate upon the few incidents of sexual abuse which she reluctantly admitted had occurred. At the conclusion of her testimony, when asked if she had told a detective that her stepfather had committed a particular act, she first replied “I don’t remember,” and then simply answered “I’m not going to answer any more of that.” The court ordered her to answer “or I’ll put you in jail until you do.” Sarah remained obstinate, twice replying “I’m not going to answer it.” Accordingly, she was ordered into temporary custody at juvenile hall for contempt of court.
On such a record, the trial court clearly exercised common sense and acted well within its discretion in finding that Sarah was “unavailable” within the meaning of Evidence Code sections 240 and 1291. (See People v. Rojas (1975) 15 Cal.3d 540, 551 [ 125 Cal.Rptr. 357 , 542 P.2d 229 , 92 A.L.R.3d 1127 ] [witness’ refusal to testify constitutes unavailability].)
I would affirm the judgment.