The Therapist
September/October 2016
David G. Jensen, JD (Former CAMFT Staff Attorney)
Updated November, 2022 by Alain Montgomery, JD (CAMFT Staff Attorney)

A muddle is something mixed-up, confused, and jumbled; something in disarray; and something that leaves us, well, befuddled. One recurring muddle, like a bog that gets created anew after each rainstorm, is who has authority to waive the psychotherapist-patient privilege (“Privilege”) on behalf of minor patients during legal proceedings. Some believe that parents have to do so. Some believe that minors have to do so. Still others believe that attorneys have to do so. Given the conflicting opinions on the issue, and the fact that there is some truth to each of these positions, quite a muddle indeed! 

The issue of minors and Privilege is complex. In fact, because of the uniqueness of these cases, and the different laws involved, this might be one of the more complex issues in the profession. The CAMFT Ethics Code reflects this complexity by encouraging members to “determine” who the holder of privilege is in legal proceedings.¹

Ultimately, to resolve the issue of minors and Privilege, the type of legal proceeding involved must be considered because different courts have different rules regarding minors and decision-making authority. Is the legal proceeding your minor patient is involved in a lawsuit alleging mental distress damages? Is it a juvenile court dependency proceeding involving that minor? Or, is it a family court proceeding involving that minor as a witness in his or her parent’s custody or visitation battle?

With this background in mind, let us turn to three types of legal proceedings involving minors and Privilege. These three types of proceedings are not exhaustive, but merely representative. The three types of legal proceedings are:  

1. A lawsuit filed on behalf of your minor patient in the Superior Court, Civil Division against another person or entity in which your minor patient is seeking compensation for mental distress damages.
2. A lawsuit filed in the Superior Court, Family Law Division by one of the parents, or legal guardians, of your minor patient seeking custody or visitation of your minor patient.  
3. A dependency proceeding in the Juvenile Court to remove your minor patient from his or her parents or legal guardian’s custody.

Additionally, since we are on the subject of minors and Privilege, it is a good idea to review some other principles of law that, from time to time, and to one degree or another, come into play in legal proceedings involving minor patients and their mental health information:

1. According to California Evidence Code § 1013, the holder of the Privilege is generally the patient or the patient’s guardian, and, pursuant to California Evidence Code § 912, the holder of the Privilege waives the Privilege.   
2. There may be a limited waiver of the Privilege, meaning some patient information has to be produced, but not a complete waiver of the Privilege, meaning all patient information has to be produced.  
3. In appropriate cases, California Health & Safety Code § 123115 allows a psychotherapist to deny access of a minor patient’s mental health information to parents, or their representatives, when a psychotherapist believes that allowing access to such information would have a “detrimental effect” on the professional relationship with the minor, or on the minor’s physical or emotional well-being (“123115 Factors”). Like the Privilege, these factors would have to be asserted to the court for consideration during legal proceedings.

The Civil Lawsuit Filed in the Superior Court
Suppose you are treating a sixteen year old boy who was injured in an automobile accident, which was caused by another driver. Your patient was hospitalized for his injuries, missed his entire soccer or baseball season, and now suffers from depression because of such injuries and losses. A lawsuit for physical and emotional injuries has been filed in the Superior Court, Civil Division, in the name of your patient.  

Then, one sunny day, you are served with a subpoena for the boy’s psychotherapy records. Although this is a case where the patient is making an issue of his mental health, and records will undoubtedly have to be produced, you still want to obtain a waiver of the Privilege before disclosing any records to the defendant. Under this set of facts, who would be empowered to waive Privilege? Would the minor be so empowered? Or, would someone else have to be so empowered to do so?  

In general, in California minors do not have the legal capacity to sue, so litigation involving them must be conducted through a guardian or a guardian ad litem (“G-AL”). California Code of Civil Procedure § 372 states that “When a minor … is a party, that person shall appear by a guardian … or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” A G-AL is a guardian appointed for purposes of litigation and the G-AL is the representative of record of the minor

With the type of case set forth above, basically a claim for physical and emotional and mental injuries, confirming who is the holder of privilege necessitates asking who is the minor patient’s guardian or G-AL. Could one of the minor’s parents be the guardian or the G-AL? Absolutely and oftentimes mother or father is the guardian or G-AL in this type of case, although, depending on the facts, the guardian or G-AL could also be an aunt, uncle, or family friend. With the G-AL, there will be an order from the court appointing that person as G-AL. Conforming the holder of privilege, within the context of this type of case, means obtaining and reviewing any such order.  

The Family Court Custody Proceeding
In a family court custody or visitation proceeding, the rule is different than it is in the civil lawsuit. In a family court custody or visitation proceeding, the court has the power to appoint minor’s counsel to represent the child.² The court will make this appointment when it deems it is in the child’s best interests to do so, but minor’s counsel will not be appointed in every case.  

In terms of waiving a minor’s Privilege in a family court custody or visitation proceeding, a key issue to confirm is whether minor’s counsel has been appointed for the child. If so, there will be a court order evidencing such appointment. Once named, minor’s counsel is expressly authorized by statute to “assert or waive any privilege on behalf of the child.”³

But, what if the court does not appoint minor’s counsel? Who can waive Privilege on behalf of a minor then? This is one of the more difficult issues to wrestle with in this area because there is not a definitive answer. Throughout the state, judges will allow parents to waive privilege on behalf of their minor children when there are no conflicts between the children and their parents. Still other judges will allow minors themselves, especially if the minor is over twelve years old.  

Judges who allow parents to waive Privilege on behalf of their minor children will typically only do so if both parents agree on waiving, but even if both parents agree to do so, there still might be room for the psychotherapist to invoke the “123115 Factors” to protect the minor and his or her mental health information. Judges who allow parents to waive Privilege on behalf of their children often justify such action on account of constitutional law principles regarding the rights of parents generally to make decisions concerning their children.  

Remember, however, your job is not to determine who has the right to waive Privilege on behalf of your minor patient; that is the court’s job. Your jobs are to assert the Privilege on behalf of your minor patients, and to “confirm” who the holder of Privilege is in legal proceedings. But, in a case where minor’s counsel has not been appointed, do not be surprised if a judge allows the parents, or a parent, as the case may be, to waive Privilege on behalf of the minor. It happens all the time all over the state.  

Always be vigilant, however, in utilizing the “123115 Factors” in cases where you believe your professional relationship with that child would be compromised or the child, himself or herself, would be harmed by the disclosure of their mental health information.  

The Juvenile Court Dependency Proceeding
In a juvenile court dependency proceeding, the rules are different from the civil lawsuit and the family court visitation proceeding. In a juvenile court dependency proceeding, a minor can waive his or her own Privilege if the court finds the minor to be of “sufficient age and maturity” to do so.⁴ Such sufficiency would be presumed by the court if the minor was twelve years of age or older, and would have to be rebutted by clear and convincing evidence that the minor was not of sufficient age and maturity.⁵  

Additionally, with minor patients twelve years of age and older, there is an additional rule to consider: if the minor patient asserts privilege, minor’s counsel may not waive it, but if minor’s counsel asserts privilege, the minor may waive it. Alternatively, if the minor is not of “sufficient age and maturity” to do so, counsel for the child can assert or waive Privilege.6 These issues do not get much more muddled than this!  

So, confirming the holder of privilege in a Juvenile Court dependency proceeding means inquiring about whether the court has found— or presumed—your patient to be of “sufficient age and maturity” to waive Privilege; if the court has made such finding or presumption, the minor has the legal authority to waive Privilege; however, if the court has not done so, the attorney for the minor has the legal authority to do so.  

Conclusion
So, we have looked at three different types of legal proceedings and we have come up with three different groups of people with authority to waive Privilege on behalf of minor patients. Beware of the expert who opines that only patients, only parents, or only attorneys can waive Privilege for minors. The issue is just not that simple! From this article, the algorithm with minors and Privilege should be clear: different courts, different facts, and different rules all mean different outcomes.  

As we have seen, there really is not one law governing minors and Privilege; rather, there are many laws governing minors and Privilege; in fact, there are even more laws relevant to the issue of minors and Privilege than we reviewed here, including, who waives privilege when minors are emancipated and who waives Privilege if a minor is seeking a temporary restraining order. In such cases, it would be the minor!  

Remember though, in any legal proceeding, your jobs are always the same: assert Privilege and confirm the holder of privilege. But, taking into account the type of legal proceeding involved should help you narrow down the list of “usual suspects” for conformation purposes in whatever legal proceeding you are fortunate enough to find yourself in on behalf of your minor patient.  

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Endnotes

¹ CAMFT Ethical Standard 10.6
² California Family Code § 3150
³ California Family Code § 3151(c)(7)
⁴ California Welfare & Institutions Code § 317(f)
⁵ California Welfare & Institutions Code § 317(f)
⁶ California Welfare & Institutions Code § 317(f)

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.