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Court of Appeal, First District, Division 2, California.

The COUNTY OF ALAMEDA, Petitioner, v. SUPERIOR COURT, County of Alameda, Respondent; DARLENE W., etc., Real Parties in Interest.


Decided: June 18, 1987

Stephen G. Blitch, James C. Martin, Mark E. Barmore, Crosby, Heafey, Roach & May, P.C., Oakland, for petitioner. J. Frederick Haley, Matthew D. Haley, Law Offices of J. Frederick Haley, Oakland, for real parties in interest.

This petition presents the question of whether the identity of a mental patient who allegedly raped another in a county facility is privileged.   We hold that it is not.   We conclude that under the instant facts an exception is impliedly provided by statute.   We therefore do not reach the question of whether it is also constitutionally required.  (Cf. Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 769, 190 Cal.Rptr. 919, 661 P.2d 1073.)

Petitioner, County of Alameda, the defendant in a personal injury action predicated on negligent supervision in its Highland Hospital Emergency Psychiatric Service (Hospital) seeks a writ of mandate to restrain the enforcement of respondent court's discovery order requiring disclosure of the name, address and telephone number of the male patient who allegedly raped another committed patient, plaintiff and real party in interest, Darlene W.1  Petitioner contends that the information sought is immune from discovery under the psychotherapist-patient privilege (Evid.Code, §§ 1010–1027) 2 and the privacy provision of the state Constitution.  (Art. I, § 1.) 3  Real parties maintain that their need for disclosure outweighs the minimal intrusion into the male patient's privacy.

The complaint alleges that while Darlene W. was a patient at the Hospital, a locked facility providing psychiatric evaluation treatment, she was forced into the men's bathroom and raped by a male fellow patient.   One of the interrogatories requested “the name, address, and telephone number of the man found in the bathroom with plaintiff at the time of the incident.”  (Emphasis added.)   Petitioner refused to answer the interrogatory claiming the matter privileged.

Petitioner's opposition stated:  “Plaintiff was brought to Highland General Hospital by her mother during the early morning hours of July 7, 1984․  [¶] At approximately 4:30 p.m. on July 7, 1984, plaintiff was found by a nurse in the bathroom inside the locked service with a male fellow patient.   The plaintiff was fully clothed.   At that time, plaintiff denied the male patient did anything to her or with her.”   Petitioner's opposition included the affidavit of a staff mental health specialist revealing that the man found with Darlene W. was also a patient.   Real parties maintain that to claim the privilege petitioner intentionally revealed the fact that the alleged assailant was a patient of the Hospital.   Arguably, petitioner by revealing this fact waived its privilege.  (See Richard L. Marcus, The Perils of Privilege:  Waiver and the Litigator, 84 Michigan Law Review 1605 (1986).)

Petitioner relies on our decision Smith v. Superior Court (1981) 118 Cal.App.3d 136, 173 Cal.Rptr. 145, a marital dissolution action in which we held that the names of the husband's psychiatric patients were not discoverable by the wife to ascertain his income.   We explained that the psychotherapist-patient privilege was to be construed in favor of the patient, and was based, in part, on the constitutional right to privacy, citing In re Lifschutz (1970) 2 Cal.3d 415, 432, 85 Cal.Rptr. 829, 467 P.2d 557.   We relied on well settled law that disclosure of the identity of a patient violates even the less stringent physician-patient privilege “where such disclosure reveals the patient's ailment” (Smith v. Superior Court, supra, 118 Cal.App.3d at pg. 140, 173 Cal.Rptr. 145) a necessary corollary of divulging the fact of psychiatric treatment.  Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933–934, fn. 13, 114 Cal.Rptr. 603, 523 P.2d 643;  City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 518–519, 168 Cal.Rptr. 49.)   We therefore concluded that the psychotherapist-patient privilege protected the identity of the husband's patients and noted that the wife had less intrusive means of ascertaining the husband's income.

Respondent court, in its helpful memorandum decision, distinguished Smith v. Superior Court, supra, 118 Cal.App.3d 136, 173 Cal.Rptr. 145, on the ground that the protected patients in Smith were innocent of any fault while the male patient in the instant case is allegedly Darlene W.'s rapist.   Respondent court relied on general statutory provisions that privileges are not available to protect disclosure of criminal conduct (§§ 997, 1018), and the specific provision of section 999,4 to conclude that the physician-patient privilege had no application to this case.   Respondent court balanced the psychotherapist-patient privilege against the state's strong interest in deterring rape and protecting rape victims which has been the subject of recent legislative activity.5  Respondent court then weighed the male patient's privilege against the compelling interest in safety from violent assault, and relying on Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 440, 442, 131 Cal.Rptr. 14, 551 P.2d 334, concluded that:  “The protective privilege ends where the public peril begins.”   (Emphasis added.)

 We agree with respondent court's conclusion and most of its general analysis.   However, the statutorily created psychotherapist-patient privilege does not contain a provision that parallels section 999.6  (City of Alhambra v. Superior Court, supra, 110 Cal.App.3d at p. 519, 168 Cal.Rptr. 49.)   Section 1018 7 (which parallels section 997) by its terms, is limited to a factual situation not alleged here, i.e., “if the services of the psychotherapist were sought ․ to escape detection or apprehension after the commission of a crime or a tort.”

We therefore focus on section 1014.   So far as pertinent, section 1014 provides:  “Subject to Section 912[8 ] and except as otherwise provided in this article, 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.”   As will appear, we construe section 1014 to include an implied exception.

We recognize that in section 911 9 “the Legislature clearly intended to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy.  [Citations.]  Thus, unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal.”  (Welfare Rights Organization v. Crisan, supra, 33 Cal.3d 766, 769, 190 Cal.Rptr. 919, 661 P.2d 1073.)   The same is true of a non-statutory exception to a privilege.  (Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 99, 185 Cal.Rptr. 97.)

 We agree with petitioner that no existing Evidence Code provision precisely covers the instant situation and that relevance and the public interest in prosecuting crime alone will not suffice to overcome the psychotherapist-patient privilege.10  (Luhdorff v. Superior Court, supra, 166 Cal.App.3d 485, 212 Cal.Rptr. 516;  Roberts v. Superior Court (1973) 9 Cal.3d 330, 338, 107 Cal.Rptr. 309, 508 P.2d 309.)   Intrusion upon constitutionally protected areas of privacy requires a balancing of the juxtaposed rights, and the finding of a compelling state interest.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766;  Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657, 125 Cal.Rptr. 553, 542 P.2d 977;  White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222.)   Here the privacy right of petitioner's male patient also must be weighed against the state's compelling interest in protecting persons like Darlene W. committed to its care.

 Our Supreme Court recently reiterated:  “The psychotherapist-patient privilege has been recognized as an aspect of the patient's constitutional right to privacy.  [Citations.]  It is also well established, however, that the right to privacy is not absolute, but may yield in the furtherance of compelling state interests.”  (Emphasis added.)  (People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668 P.2d 738;  City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 131, 164 Cal.Rptr. 539, 610 P.2d 436.)   There must be a careful balancing of the compelling need for discovery against the fundamental right of privacy.  (Ibid.)  Thus, the psychotherapist-patient privilege may yield to a criminal defendant's right to confrontation and cross-examination (see People v. Reber (1986) 177 Cal.App.3d 523, 530–532, 223 Cal.Rptr. 139 and Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40) and the right of privacy may yield to a civil defendant's legitimate interest in preparing a defense.  “The state's interest in facilitating the ascertainment of truth in connection with legal proceedings is substantial enough to compel disclosure of a great variety of confidential material, including even communication between a psychotherapist and his patient.”  (Emphasis added.)  (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 550, 174 Cal.Rptr. 148, citing In re Lifschutz, supra, 2 Cal.3d 415, 432–433, 85 Cal.Rptr. 829, 467 P.2d 557.)

 The usual rule of broad construction of the privilege in favor of the patient (Roberts v. Superior Court, supra, 9 Cal.3d 330, 107 Cal.Rptr. 309, 508 P.2d 309;  Grosslight v. Superior Court (1977) 72 Cal.App.3d 502, 140 Cal.Rptr. 278), is of little help here where we must balance the interests of two psychiatric patients committed to the care of petitioner;  however, petitioner focuses only on the privilege and privacy rights of its male patient and argues that neither Darlene W.'s right to personal safety nor the compelling state interest in truth in legal proceedings requires an exception to the privilege.11

Whatever is necessarily implied in a statute is as much a part of it as that which is expressed.  (Johnston v. Baker (1914) 167 Cal. 260, 264, 139 P. 86.)   As our Supreme Court recently noted, this principle has been applied not infrequently.  (Welfare Rights Organization v. Crisan, supra, 33 Cal.3d 766, 777, 190 Cal.Rptr. 919, 661 P.2d 1073.)   In Crisan, the court implied a guarantee of confidentiality akin to the attorney-client privilege to representation by lay persons pursuant to Welfare and Institutions Code section 10950.12  Our Supreme Court reasoned that the statutory provisions of a fair hearing with a personal representative necessarily implied that communications between welfare claimants and lay authorized representatives were privileged.   The court relied on the fact that Aid to Families With Dependent Children was a federal program which mandated a system of hearings that met due process standards articulated in Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.

The New York courts, when faced with a substantially similar fact situation focused on fairness and the state's duty toward persons committed to its care.   In Boykin v. State (N.Y.Ct.Cl.1958) 13 Misc.2d 1037, 179 N.Y.S.2d 197, 200, the court expressly sanctioned a discovery order requesting the names of patients who may have witnessed the incident and hospital records relating to the staff's observations (as distinct from the professional diagnosis and prognosis) of the alleged assailant whose identity was known, as well as the examination of the hospital director as to the number of employees on duty at the time of the incident.  (Accord Torres v. State (1958) 14 Misc.2d 246, 179 N.Y.S.2d 201, 202 [another alleged assault by one institutionalized patient on another];  see Barry v. State (1964) 44 Misc.2d 568, 254 N.Y.S.2d 306;  Wilson v. State (1971) 36 A.D.2d 559, 317 N.Y.S.2d 546, 549 [prisoners].)

The federal courts agree that while confined under state authority, a patient (or prisoner) retains a liberty interest in personal security and therefore is entitled to protection from harm by other dangerous patients (or prisoners).  (Youngberg v. Romeo (1982) 457 U.S. 307, 314–316, 102 S.Ct. 2452, 2457–2458, 73 L.Ed.2d 28;  Goodman v. Parwatikar (8th Cir.1978) 570 F.2d 801, 804;  Harper v. Cserr (1st Cir.1976) 544 F.2 1121, 1123;  see Huber, Roth, Applebaum and Ore, Hospitalization, Arrest, or Discharge:  Important Legal and Clinical Issues in the Emergency Evaluation of Persons Believed Dangerous to Others ;  45 Law & Contemporary Problems (1982) 99, 119–121;  Note, The Case for a Federal Psychotherapist-Patient Privilege that Protects Patient Identity (1985) Duke L.J. 1217–1226.)

Accordingly, we construe section 1014 to include an implied exception granting the limited right of discovery here sought.   The absence of a single earlier case on the instant issue provides support for our conclusion:  during the 21 years in which the psychotherapist-patient privilege has existed in California, the implicit guarantee of fairness requiring discovery in a situation like the instant one has gone unquestioned.

We paraphrase the language of Torres v. State, supra, 179 N.Y.S.2d 201, as it is particularly apt here:  Justice and law are not blind to practicalities.   Something happened to the incompetent real party in interest, Darlene W., while under petitioner's care at its locked Hospital, allegedly resulting in serious physical and psychic injuries.   By our decision today we enable her to have a real day in court by allowing her to have the name of her alleged attacker.   We believe fundamental fairness requires our result and that our holding is consistent with Lifschutz and Tarasoff.13  (Cf. Lemelle v. Superior Court, supra, 77 Cal.App.3d 148, 160–161, 143 Cal.Rptr. 450.)

Our interpretation of section 1014, as providing an implicit discovery right under the particular facts of this case, is supported by the rule that courts are to construe statutes in a manner which avoids constitutional difficulties.  (Welfare Rights Organization v. Crisan, supra, 33 Cal.3d 766, 772, 190 Cal.Rptr. 919, 661 P.2d 1073.)   Having decided the issue on statutory grounds, we leave the due process and right of personal safety issues for another day.14

 We therefore hold that the state's compelling interest in the safety of its patients from violent assault (Tarasoff v. Regents of the University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334) justifies the creation of a judicially created exception to the statutory privilege to the extent of the disclosure of the name, address and telephone number of the male patient.   Even where, as here, the balance, because of a compelling state interest, weighs in favor of disclosure of private information, the scope of the disclosure must be drawn with narrow specificity.  (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526, 174 Cal.Rptr. 160, citing Britt v. Superior Court, supra, 20 Cal.3d 844, 856, 143 Cal.Rptr. 695, 574 P.2d 766.)   We limit the disclosure to the name, address and telephone number of Darlene W.'s alleged assailant and direct respondent court to protect this information from disclosure to any one other than real parties in interest.

As submitted, the discovery order is affirmed.15  The alternative writ is discharged and the petition for a peremptory writ is denied.


1.   Plaintiff and real party in interest, Darlene W. filed this action by her conservator, real party in interest, Elizabeth Telphy.

2.   All future statutory references are to the Evidence Code unless otherwise indicated.

3.   Article I, section 1 of the California Constitution provides:  “All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”  (Emphasis added.)

4.   Section 999 states as follows:  “There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown.”  (Emphasis added.)

5.   Respondent court observed:  “Here the plaintiff is a mentally ill person who may well have difficulty presenting her case without corroboration, particularly in light of defendant's claims as to her statements at the time of the incident.   The alleged rapist is the only other witness.   His testimony may be vital both on the issue as to whether a rape occurred at all, and as to the quality of supervision in the psychiatric ward.   How he managed to get a female patient into a bathroom might be relevant.”

6.   Unless an exception is shown, the Law Revision Commission comment to section 1014 explains, there is no need for such a parallel provision since the psychotherapist-patient privilege applies to criminal proceedings while the patient-physician one does not.  (§ 998;  see 3 Witkin, Cal.Evidence (3d ed. 1986) § 1210, p. 1153.)   Comments of the Law Revision Commission do not have the effect of law and are not binding on the courts.  (Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 796–799, 101 Cal.Rptr. 358.)

7.   Evidence Code section 1018 provides as follows:  “There is no privilege under this article if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.”  (Emphasis added.)

8.   Section 912 so far as relevant here provides that the psychotherapist-patient privilege is waived by disclosure without coercion of a significant part of any privileged communication or consent to such a disclosure by anyone.

9.   Section 911 provides:  “Except as otherwise provided by statute:  (a) No person has a privilege to refuse to be a witness.  (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.  (c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.”

10.   As the County points out, section 1024 relating to the dangerous patient exception was not cited.   There are not yet sufficient facts alleged here to make section 1024 applicable (see Luhdorff v. Superior Court (1985) 166 Cal.App.3d 485, 494–495, 212 Cal.Rptr. 516), even assuming it applies.  (Cf. In re Courtney S. (1982) 130 Cal.App.3d 567, 575, 181 Cal.Rptr. 843.)   A reviewing court generally will not consider issues not raised in the trial court.  (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 159, 143 Cal.Rptr. 450.)

11.   By bringing this action Darlene W. has waived her psychotherapist-patient privilege to the extent concomitant with the purpose of the patient-litigation exception.  (§ 1016;  Britt v. Superior Court, supra, 20 Cal.3d 844, 863, 143 Cal.Rptr. 695, 574 P.2d 766.)

12.   This section provides an opportunity for fair hearing for recipients of Aid to Families with Dependent Children “in person or through an authorized representative.”

13.   We are aware that this court (Division One) recently held that a party's psychotherapist was not immune from liability for a disclosure of privileged information voluntarily made in a judicial proceeding because the patient's constitutional right of privacy prevailed over the need for truth in judicial proceedings.  (Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 841, 228 Cal.Rptr. 545.)   Here, however, there is the additional compelling state interest in protecting persons like Darlene W. committed to its care.   In the instant situation this strong compelling state interest prevails over the privacy right of petitioner's male patient.  (Cf. McKirdy v. Superior Court (1982) 138 Cal.App.3d 12, 188 Cal.Rptr. 143 [legitimate state need to obtain evidence of fraud by examining patient records outweighs the patients' privacy interest in the records].)

14.   Our conclusion also disposes of the petitioner's “Pandora's Box” argument that there would be no foreseeable limits to a constitutionally based privilege derived from the right to personal safety.   Petitioner's argument emphasized the priest-penitent and the spousal privileges, both of which have a history substantially different from the legislatively created psychotherapist-patient privilege here in issue.  (See 3 Witkin, Cal.Evidence (3d ed. 1986) §§ 1180, 1220.)

15.   We asked the parties to discuss at oral argument and in the subsequent letter briefs, whether limiting the discovery order to the name, address and telephone number sought, would violate Welfare and Institutions Code section 5328, subdivision (f) which protects disclosures beyond any privileges established by the Code.  (People v. Gardner (1984) 151 Cal.App.3d 134, 140, 198 Cal.Rptr. 452;  In re S.W. (1978) 79 Cal.App.3d 719, 721, 145 Cal.Rptr. 143.)   Subdivision (f) applies to all information and records in the course of providing services under Division 5, commencing with section 5000, i.e., to the Lanterman-Petris-Short Act and the Short-Doyle Acts (collectively LPS).  (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 443, 131 Cal.Rptr. 14, 551 P.2d 334.)   This court held in Sinacore v. Superior Court (1978) 81 Cal.App.3d 223, 225–226, 146 Cal.Rptr. 302, that the exception of subdivision (f) for disclosures “to the courts” as necessary for the administration of justice, applied only to the programs described by Divisions 5, 6 and 7 of the Welfare and Institutions Code, citing Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 443, 131 Cal.Rptr. 14, 551 P.2d 334.Petitioner argues that:  (1) the instant record does not contain sufficient facts to ascertain whether or not Darlene W.'s alleged assailant was an LPS admittee;  (2) even if so, at most, subdivision (f) authorizes disclosure only to a court and not to a party.   Real parties agree that subdivision (f) does not provide an express exception for our purposes here (Mavroudis v. Superior Court, supra, 102 Cal.App.3d 594, 599, 162 Cal.Rptr. 724;  In re S.W., supra, 79 Cal.App.3d 719, 722, 145 Cal.Rptr. 143), but suggest that since subdivision (f) expresses the Legislature's desire to allow disclosure of records of involuntarily detained patients where necessary for the administration of justice, it supports their argument for discovery here.   We agree and note the recent addition to section 5328 (Stats.1985, ch. 1324, § 1.7, p. ––––) of subdivision (s) which provides:  “When the patient, in the opinion of his or her psychotherapist, presents a serious danger of violence to a reasonably foreseeable victim or victims, then any of the information or records specified in this section may be released to that person or persons and to law enforcement agencies as the psychotherapist determines is needed for the protection of that person or persons.   For purposes of this subdivision, ‘psychotherapist’ means anyone so defined within Section 1010 of the Evidence Code.”  (Emphasis added.)

SMITH, Associate Justice.

KLINE, P.J., and ROUSE, J., concur.

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