Feature

APA and the California Psychological Association (CPA) recently fought a judicial attempt to breach client-therapist privilege, and the upshot was a victory for psychologists and consumers of psychological services. As urged by the two psychological associations, the California Court of Appeal reversed a lower court's order for a therapist to disclose confidential communications with a patient.

Psychology's advocacy efforts started when Charles Faltz, PhD, CPA's director of professional affairs, received a call from a member who had been asked to release a client's records as part of a civil suit. The client began therapy after an automobile accident in which another person's property was significantly damaged. The property owner filed suit for emotional distress and negligence, claming that the client-who was legally intoxicated at the time of the accident-had a history of alcoholism. A Superior Court judge ordered the therapist to release his client's records, saying that they were "directly relevant" to the case.

"He [the therapist] believed that the law protected his records and did not want to divulge [them]," says Faltz. "After doing some research of my own, I didn't believe that 'relevancy' was one of the reasons under California law to break privilege." Faltz contacted APA, which became involved in the case along with CPA by filing an amicus (friend of the court) letter arguing that the Superior Court had disregarded California's privilege law in ordering the disclosure of confidential patient records. The letter also emphasized that the court's order would have an adverse impact on mental health treatment (see box).

California's privilege law states that a patient "has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between patient and psychotherapist." State law provides for 12 designated exceptions to this privilege. APA attorneys say there is no "relevancy" exception in California law.

Decision reversed

The defendant filed a motion to quash the subpoena ordered by the Superior Court, but the judge denied the motion. The defendant then appealed to the California Court of Appeal. The higher court sent the plaintiff (the property owner) a Palma notice, a procedure used in California law to give notice that the court intends to set aside the lower court's action without a hearing. Shortly after the plaintiff submitted a written response to the notice, the Court of Appeal reversed the lower court judge's ruling, thereby protecting the confidentiality of the patient records.

Professional psychology leaders applauded the action. "The need to protect and preserve confidentiality is a central underpinning of the psychotherapy process," says Russ Newman, PhD, JD, APA executive director for professional practice. "Issues and developments like this recent case in California involving therapist-patient privilege have always been among the APA Practice Directorate's high priority activities."

"We considered it urgent to confront the lower court's action" adds Billie Hinnefeld, JD, PhD, senior director of legal and regulatory affairs for the APA Practice Directorate. "If the ruling were allowed to stand, it could set a dangerous precedent."

Hinnefeld credits Dr. Faltz for bringing the legal development in California quickly to APA's attention. "This is a nice example of how state, territorial and provincial psychological associations and APA can work together to achieve shared goals."

She also noted that the Court of Appeals decision could be appealed, but she considers it unlikely. "We're not aware of any such plans," says Hinnefeld.

APA Practice Directorate staff contributed to this article.

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