BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 507 Hearing Date: April 21, 2015
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|Author: |Pavley |
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|Version: |February 26, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Sexually Violent Predators
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation:AB 1607 (Fox) Ch. 877, Stats. 2014
SB 295 (Emmerson) Ch. 182, Stats. 2013
SB 760 (Alquist) Ch. 790, Stats. 2012
Proposition 83, November 2006 General Election
SB 1128 (Alquist) Ch. 337, Statutes 2006
AB 893 (Horton) Ch. 162, Stats. 2005
AB 2450 (Canciamilla) Ch. 425, Stats. 2004
AB 493 (Salinas) Ch. 222, Stats. 2004
SB 659 (Correa) Ch. 248, Stats. 2001
AB 1142 (Runner) Ch. 323, Stats. 2001
SB 2018 (Schiff) Ch. 420, Stats. 2000
SB 451 (Schiff) Ch. 41, Stats. 2000
AB 2849 (Havice) Ch. 643, Stats. 2000
SB 746 (Schiff) Ch. 995, Stats. 1999
SB 11 (Schiff) Ch. 136, Stats. 1999
SB 1976 (Mountjoy) - Ch. 961, Stats. 1998
AB 888 (Rogan) - Ch. 763, Stats. 1995
SB 1143 (Mountjoy) - Ch. 764, Stats 1995
Support: Crime Victims United of California; California
District Attorneys Association
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Opposition:American Civil Liberties Union; California Public
Defenders Association
PURPOSE
The purpose of this bill is to provide that the prosecutor or
county attorney petitioning for commitment of a person alleged
to be a sexually violent predator and the attorney for the
person shall have the same access to records as the expert
evaluators, and to prohibit any other use of the otherwise
confidential records.
Existing law provides for the civil commitment for psychiatric
and psychological treatment of a prison inmate found to be a
sexually violent predator (SVP) after the person has served his
or her prison commitment. (Welf. & Inst. Code, § 6600, et seq.)
Existing law defines an SVP as "a person who has been convicted
of a sexually violent offense against at least one victim, and
who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely
that he or she will engage in sexually violent criminal
behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1).)
Existing law provides that where the Department of Corrections
and Rehabilitation determines that an inmate fits the criteria
for evaluation as an SVP, the inmate shall be referred for
evaluation to the Department of State Hospitals (DSH). (Welf. &
Inst. Code § 6601, subd. (b).)
Existing law provides that the inmate "shall be evaluated by two
practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of the DSH." If both evaluators concur that the person
meets the criteria for SVP commitment, DSH shall request a
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district attorney or county counsel<1> in the county of
commitment to prison to file a commitment petition. (Welf. &
Inst. Code § 6601, subd. (d).)
Existing law provides that if the evaluators designated by DSH
disagree, additional, independent evaluators are appointed. The
second pair of evaluators must agree that the person meets the
requirement for SVP commitment or the case cannot proceed.
(Welf. & Inst. Code § 6601, subd. (c)-(e).)
Existing law provides that if DSH requests the district attorney
to petition for commitment, the prosecutor shall have access to
"copies of the evaluation reports and any other supporting
documents" considered by the evaluators. (Welf. & Inst. Code §
6601, subd. (d).)
Existing law provides for a hearing procedure to determine
whether there is probable cause to believe that a person who is
the subject of a petition for civil commitment as an SVP is
likely to engage in sexually violent predatory criminal behavior
upon his or her release from prison. (Welf. Inst. Code §
6602.)
Existing law provides that a person committed as a SVP shall be
held for an indeterminate term upon commitment. (Welf. & Inst.
Code, § 6604.1.)
Existing law requires a jury trial at the request of either
party with a determination beyond a reasonable doubt that the
person is an SVP. (Welf. & Inst. Code § 6603.)
Existing law grants an alleged SVP "access to all and to have
access to all relevant medical and psychological records and
reports." (Welf. & Inst. Code, § 6603, subd. (a)
Existing law provides that if the attorney petitioning for
commitment of an SVP determines that updated evaluations are
necessary in order to properly present the case for commitment,
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<1> The counsel for the state is designated by the board of
supervisors and is typically the district attorney. (Welf. and
Inst. Code § 6601, subd. (f).)
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the attorney may request the Department of Mental Health (now
denominated the Department of State Hospitals - DSH) to perform
updated evaluations.
If one or more of the original evaluators is no longer
available to testify for the prosecution in court
proceedings, the prosecutor may request the DSH to perform
replacement evaluations.
DSH shall perform the requested evaluations and forward
them to the prosecutor and counsel for the alleged SVP.
Updated or replacement evaluations shall be ordered only
as necessary to update one or more of the original
evaluations or to replace the evaluation of an evaluator
who is no longer available to testify for the petitioner in
court proceedings.
Updated or replacement evaluations shall include review
of available medical and psychological records, including
treatment records, consultation with current treating
clinicians, and interviews of the alleged SVP.
If an updated or replacement evaluation results in a
split opinion as to whether the alleged SVP meets the
criteria for commitment, DSH shall conduct two additional
evaluations, as specified. (Welf. & Inst. Code § 6603,
subd. (c)(1).)
Existing law provides that if the second pair of experts
performing the updated evaluations conclude that the person is
not an SVP, or if there is a split of opinion, the case shall
proceed on the basis of the original evaluations concluding or
finding that the person is an SVP. (Reilly v. Superior Court (
2013) 57 Cal.4th 641.)
Existing law defines "no longer able to testify for the
petitioner in court proceedings" as the evaluator is no longer
authorized by DSH to perform evaluations of SVPs as a result of
any of the following:
The evaluator has failed to adhere to the protocol of the
DSH;
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The evaluator's license has been suspended or revoked;
The evaluator is legally unavailable, as specified; or
The evaluator has retired or not entered into a new
contract with to continue as an evaluator. (Welf. & Inst.
Code § 6603, subd. (c)(1)-(2).)
Existing law provides that a new evaluator shall not be
appointed if the resigned or retired evaluator has opined that
the individual named in the petition has not met the criteria
for commitment, as specified. (Welf. & Inst. Code § 6603, subd.
(c)(1).)
Existing law requires that an SVP patient have an annual
examination on his mental condition. The report on the
examination shall include consideration of whether or not
conditional release to a less restrictive alternative or an
unconditional release is in the SVP patient's best interest and
what conditions would adequately protect the community. (Welf.
& Inst. Code, § 6604.9.)
Existing law provides that if DSH determines that an SVP
patient's condition has so changed that he or she no longer
meets the SVP criteria, or that he can be safely and
conditionally released under supervision, the SVP patient can
file a petition for unconditional release or a petition for
conditional release. (Welf. & Inst. Code, § 6604.9.)
Existing law provides that upon receipt of a petition for
unconditional release, the court shall set a hearing to
determine if there is probable cause that the SVP patient "has
so changed that he or she is not a danger to the health and
safety of others and is not likely to engage in sexually violent
criminal behavior. If the court finds probable to support such
a finding, the matter shall be set for a jury trial as though it
were an original petition for commitment. (Welf. & Inst. Code,
§§ 6604.9 and 6605.)
Existing law provides that if DSH, independent of the annual
review and report of an SVP's mental condition, that the SVP
patient can be safely and conditionally released under
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supervision, the court shall forward a report and recommendation
for conditional release to the prosecutor and the attorney for
the SVP patient. (Welf. & Inst. Code, § 6607.)
Existing law provides that if DSH does not concur that an SVP
can be safely and conditionally released under supervision, the
SVP can petition for conditional release or an unconditional
discharge any time after one year of commitment. (Welf. & Inst.
Code § 6608, subd. (a).)
Existing law provides that, if the court finds the conditional
release petition is not frivolous, the court shall give notice
of the hearing date to the attorney designated to represent the
county of commitment, the attorney for the committed person, and
the Director of State Hospitals at least 30 court days before
the hearing date. (Welf. & Inst. Code § 6608, subd. (b).)
Existing law provides that where DSH in the annual report on the
mental status of an SVP patient finds that the conditional
discharge would be in the best interests of the patient under
conditions that would protect the public, the following shall:
The state shall have the burden of proof by a
preponderance of the evidence that the SVP would be
likely to commit sexually violent offenses if conditionally
released.
If the petition for conditional release is denied by
court, the SVP may not file another petition for
conditional release for one year. (Welf. & Inst. Code §
6608, subd. (i).)
Existing law provides that if in the annual report DSH does not
find that conditional discharge is appropriate, the SVP patient
shall have the burden of proof by a preponderance of the
evidence at the hearing. (Welf. & Inst. Code § 6608, subd.
(i).)
Existing law requires the court to first obtain the written
recommendation of the director of the treatment facility before
taking any action on the petition for conditional release if the
is made without the consent of the director of the treatment
facility. (Welf. & Inst. Code, § 6608, subd. (c).)
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Existing law provides that the court shall hold a hearing to
determine whether the person committed would be a danger to the
health and safety of others in that it is likely that he or she
will engage in sexually violent criminal behavior due to his or
her diagnosed mental disorder if under supervision and treatment
in the community.
Existing law provides that the attorney designated the county of
commitment shall represent the state and have the committed
person evaluated by experts chosen by the state and that the
committed person shall have the right to the appointment of
experts, if he or she so requests. (Welf. & Inst. Code, § 6608,
subd. (e).)
Existing law requires the court to order the committed person
placed with an appropriate forensic conditional release program
(CONREP) operated by the state for one year if the court at the
hearing determines that the committed person would not be a
danger to others due to his or her diagnosed mental disorder
while under supervision and treatment in the community.
Existing law provides that a substantial portion of SVP CONREP
shall include outpatient supervision and treatment. The court
shall retain jurisdiction of the person throughout the course of
the program. (Welf. & Inst. Code § 6608, subd. (e).)
Existing law provides that if the court denies the petition to
place the person in an appropriate forensic conditional release
program, the person may not file a new application until one
year has elapsed from the date of the denial. (Welf. & Inst.
Code § 6608, subd. (h)
Existing law allows, after a minimum of one year on conditional
release, the committed person, with or without the
recommendation or concurrence of the Director of State
Hospitals, to petition the court for unconditional discharge, as
specified. If the court finds probable cause that the person is
no longer an SVP, the court shall set the matter for jury trial.
The state shall bear the burden to prove beyond a reasonable
doubt that the person remains an SVP. (Welf. & Inst. Code §§
6605, subds. (a)-(b) and 6608, subd. (k).)
Existing law provides that a person petitioning for conditional
release is entitled to assistance of counsel in the conditional
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release and county of domicile hearings. (Welf. & Inst. Code §
6608, subd. (a.))
Existing law provides that the procedure for a conditional
release hearing in a case in which the county of domicile has
not yet been determined by the court, proceed as follows:
The court, upon deeming that a conditional release
petition is not frivolous, shall provide notice to the
attorney for the committed person, the designated attorney
for the county of commitment, and the Director of State
Hospitals of its intent to set a conditional release
hearing, and requires these entities to notify the court
within 30 court days of receiving the notice of intent if
it is alleged that a county other than the county of
commitment is the domicile county.
The court shall deem the county of commitment as the
county of domicile and set a date for the conditional
release hearing, with at least 30 court days' notice, as
specified, if no county, other than the county of
commitment, is alleged to be the county of domicile.
The court shall, after giving 30-days' notice, hold a
hearing to determine the county of domicile if any other
county, other than the county of commitment, is alleged to
be the county of domicile. Allows the designated attorney
for any alleged county of domicile, the attorney for the
county of commitment, the attorney for the petitioner, and
the Director of State Hospitals to file and serve
declarations, documentary evidence, and other pleadings,
specific to the issue of domicile only, at least 10 court
days prior to the hearing. Allows the court, in its
discretion, to decide the issue of domicile based upon the
pleadings alone or permit such additional argument and
testimony as is in the interest of justice.
The court, after determining county of domicile, shall
set a date for a conditional release hearing and give
notice of the hearing, as specified, including to the
designated attorney for the county of domicile at least 30
court days before the date of the hearing.
The designated attorney of the domicile county has the
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right to represent the state at the conditional release
hearing, and to provide notice to parties, as specified, if
he or she elects to do so. The designated attorney from
each of the county commitment and domicile may mutually
agree that the attorney for the county of domicile will
represent the state in the conditional release hearing.
The attorneys from each county should cooperate.
The court's determination of a county of domicile is
final and applies to future proceedings relative to the
commitment or release of a SVP. (Welf. & Inst. Code §§
6608, subd. (b). 6608.5.)
Existing law provides that a conditional release hearing in a
case in which the county of domicile has been determined by the
court, shall proceed as follows:
The court, upon deeming that a conditional release
petition is not frivolous, to provide notice to the
attorney for the committed person, the designated attorney
for the county of commitment, the attorney for the county
of domicile and the Director of State Hospitals of the date
of the conditional release hearing at least 30 days prior
to the hearing.
Provides that representation of the state at the
conditional release shall be the attorney for the county of
commitment unless the attorney for the county of domicile
has been deemed to represent the state. (Welf. & Inst.
Code § 6608, subd. (c.).)
Existing law provides, if a committed person has been
conditionally released by a court to a county other than the
county of domicile - the county of placement - and the
jurisdiction of the person has been transferred to that county,
the notice required for a subsequent conditional release hearing
is to be given to the designated attorney of the county of
placement, who will represent the state in any further
proceedings. (Welf. & Inst. Code § 6608, subd. (d).)
Existing law provides that if the committed person has been
placed on conditional release in a county other than the county
of commitment, jurisdiction of the person shall, upon the
request of the designated attorney of the county of placement,
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be transferred to that county. (Welf. & Inst. Code § 6608.5,
subd. (g).)
This bill provides that where updated or replacement evaluations
have been prepared, the attorney petitioning for commitment and
the SVP patient's counsel "shall have the same access to records
as an [expert psychologist or psychiatrist] evaluator." The
court shall issue a subpoena or court order for those records
upon request. The attorneys may only use the records in
proceedings under this article and shall not be disclose them
for any other purpose. The records are confidential to the
extent otherwise provided by law.
This bill does not limit the access of the prosecutor and
counsel for an SVP patient or alleged SVP to records relied upon
by the evaluators.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
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capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
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1.Need for This Bill
According to the author:
In 1996, the Legislature created the Sex Offender
Commitment Program to target a small, but extremely
dangerous subset of "sexually violent predators"
(SVPs) who present a continuing threat to society
because their mental disorders predispose them to
engage in sexually violent behavior. Specifically, an
SVP is a person who was previously convicted of a
sexually violent offense and committed to prison for
that or another offense. Prior to release from
prison, experts from the Department of State Hospitals
evaluate the inmate to determine if he is likely,
because of a mental disorder, to commit a sexually
violent offense if released. The person is then
entitled to a trial in which the prosecutor must
establish beyond a reasonable doubt that the experts'
opinions are correct. If the jury or court agrees,
the person is committed to a state hospital as an SVP
Despite the critical role DSH evaluations play in the
SVP commitment process, as the California State
Auditor cited in its March 2015 report, the California
Department of State Hospitals "has not ensured that it
conducts these evaluations in a consistent manner" and
have noted "instances in which evaluators did not
demonstrate that they considered all relevant
information."
The court in Albertson v. Superior Court (2001) 25
Cal. 4th 796, held that Welfare and Institutions Code
(WIC) Section 6603 grants express authority for
updated expert evaluations and clarified an exception
to the general rule of confidentiality of treatment
records that allows the prosecutor "access to
treatment record information, insofar as that
information is contained in an updated evaluation."
Some trial courts have interpreted this language to
grant the DA access only to treatment information and
not to the records themselves. Section 6603 states
that the updated evaluations shall include a review of
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medical and mental health records. It does not
explicitly grant prosecutor's access to the records,
nor did it explicitly deny or limit access. The
Albertson court noted that "in a SVPA proceeding, a
district attorney may obtain, through updated mental
evaluations otherwise confidential information
concerning an alleged SVP's treatment." Whether the
DA is granted direct access to the records, or only
allowed to access records relied upon by the
evaluators, depends upon each judge's reading of
Albertson. As a result, the issue is repeatedly
litigated and the results vary throughout California.
In Seaton v. Mayberg (2010) 610 Fed.3rd 530, 539, the
U.S. Ninth Circuit court held that sexually violent
predator evaluations fall within a number of
long-established exceptions to the confidentiality of
medical communication. These include cases of
restraint due to insanity, contagious diseases, abuse
of children and gunshot wounds. In People v. Martinez,
the 4th District Court of Appeal held that it is not a
violation of the California right to privacy (to
provide copies of mental health treatment records to
the prosecutor in an SVP case. (People v. Martinez
(1994) 88 Cal App 4th 465.
Some of California's most violent sexual predators can
be released back into society if complete information
is not available to prosecutors and defense lawyers at
the time the predator's cases are being reviewed.
This bill is needed to help ensure such mistakes are
prevented in the future, providing more peace of mind
to already traumatized victims, their families and the
public at large.
According to the National Intimate Partners and Sexual
Violence Survey, conducted by the Centers for Disease
Control and Prevention, there are an estimated two
million female victims of rape in California, and
estimated 8.5 million survivors of sexual violence,
other than rape, in the United States.
Twenty others states and the federal government allow
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involuntary civil commitment of sexually violent
predators. California is the only state that does not
have a specific legislative provision granting
prosecutors access to mental health and medical
records for the purpose of carrying out sexually
violent predator commitment law.
2. SVP Law Generally
The Sexually Violent Predator Act (SVPA) establishes a civil
commitment scheme for sex offenders who are about to be released
from prison. The DSH uses specified criteria to determine
whether an individual qualifies for treatment as a SVP. A
person may be deemed a SVP if: (a) the person has committed
specified sex offenses against one or more victims; (b) he has a
diagnosable mental disorder that makes him<2> a danger to the
health and safety of others in that it is likely that he or she
will engage in sexually-violent criminal behavior; and, (3) two
licensed psychiatrists or psychologists concur in the diagnosis.
If both clinical evaluators find that the person meets the
criteria, the case is referred to the county district attorney
who may file a petition for civil commitment.
Once a petition has been filed, a judge holds a probable cause
hearing; and if probable cause is found, the case proceeds to a
trial at which the prosecutor must prove to a jury beyond a
reasonable doubt that the offender meets the statutory criteria.
The state must prove "[1] a person who has been convicted of a
sexually violent offense against [at least one] victim[] and [2]
who has a diagnosed mental disorder that [3] makes the person a
danger to the health and safety of others in that it is likely
that he or she will engage in [predatory] sexually violent
criminal behavior." (Cooley v. Superior Court (Martinez) (2002)
29 Cal.4th 228, 246.) If the prosecutor meets this burden, the
person then can be civilly committed to a DSH facility for
treatment.
The DSH must conduct a yearly examination of a SVP's mental
condition and submit an annual report to the court. This annual
review includes an examination by a qualified expert. (Welf. &
Inst. Code, § 6604.9.) In addition, DSH has an obligation to
seek judicial review any time it believes a person committed as
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<2> Virtually all SVPs have been men.
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a SVP no longer meets the criteria, not just annually. (Welf. &
Inst. Code, § 6607.)
The SVPA was substantially amended by Proposition 83 ("Jessica's
Law"), which became operative on November 7, 2006. Originally,
a SVP commitment was for two years; but now, under Jessica's
Law, a person committed as a SVP may be held for an
indeterminate term upon
commitment or until it is shown that the defendant no longer
poses a danger to others. (See People v. McKee (2010) 47 Cal.
4th 1172, 1185-1187.) Jessica's Law also amended the SVPA to
make it more difficult for SVPs to petition for less restrictive
alternatives to commitment. These changes have survived due
process, ex post facto, and, more recently, equal protection
challenges. (See, People v. McKee, supra, 47 Cal. 4th 1172 and
People v. McKee (2012) 207 Cal.App.4th 1325.) The standards and
procedures for conditional release proceedings were changed by
SB 295 (Emmerson) Ch. 182, Stats. 2013.
3. Extent of Confidentiality of Psychotherapy Treatment Records
of Persons Committed as SVPs and Alleged SVPs
a.Privacy Rights Generally and the Psychotherapist-Patient
Privilege
The California Constitution includes an explicit right to
privacy. (Art. I, § 1.) The "penumbras" of specific rights in
the United States Constitution include a right to privacy for
matters relating to family and procreation. (Griswold v.
Connecticut ( 1965) 381 US. 479, 481-486; Roe v. Wade (1973) 410
U.S. 113.) The United States Supreme Court has not clearly
described a more general right to privacy, except as is created
by the Fourth Amendment right to be free from unreasonable
searches and seizures. (People v. Gonzales (2013) 56 Cal.4th
353, 370-372.)
The California Evidence Code includes a psychotherapist-patient
confidentiality privilege. (Evid. Code § 1014.) The patient
is the holder of the privilege and the privilege is
substantially broader than the doctor-patient privilege.
(People v. Gonzales, supra, 46 Cal.4th, at p.384.) The
privilege applies apart from any privacy rights a person may
have in medical records generally.
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b.Involuntary Forensic Mental Health Treatment
The SVP law and program is one of a number of "forensic"
involuntary commitment categories in California. Forensic
patients are involuntarily committed to DSH from the criminal
justice system for treatment. Forensic patients include
mentally disordered offenders (MDO), persons found not guilty by
reason of insanity (NGI) and defendants who are incompetent to
stand trial (IST). Forensic patients comprise over 90% of DSH
patients. DSH also treats is true civil commitment patients
pursuant to the Lanterman-Petris-Short (LPS) Act. An LPS
patient is a person with a mental illness who is either gravely
disabled and cannot care for himself or herself, or is a danger
to self or others. (Welf. & Inst. Code §§ 5000-5550.)
As described above, an SVP is involuntarily committed for mental
health treatment because he has a mental disorder that makes it
likely that he will engage in sexually violent and predatory sex
crimes if released into society. Nevertheless, the SVP is
constitutional because it "establish[es] a nonpunitive, civil
commitment scheme covering persons who are to be viewed, "'not
as criminals, but as sick persons.'" (Hubbart v. Superior Court
(People) (1999) 19 Cal.4th 1138 1166-1167; Welf. and Inst. code
§ 6250.)
c. Treatment and Confidentiality in SVP Commitments
Generally, records of treatment of DSH patients, including SVP
records, are confidential, unless otherwise specified. (Welf. &
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Inst. Code 5328.)<3> Section 5238 states that "[a]ll
information and records obtained in the course of providing
services under? Division 6 [including SVP law] to either
voluntary or involuntary recipients of services shall be
confidential." (See, Gilbert v. Superior Court (2014) 224
Cal.App.4th 376,)
However, subdivision (c) of Section 6603 creates a limited
exception to confidentiality rules in the context of updated or
replacement expert evaluations on the issue of whether a person
is an SVP: Under section 6603, subdivision (c)(1), the People
may obtain updated evaluations of an alleged SVP and obtain
access to "otherwise confidential treatment information ? to the
extent such information is contained in an updated mental
evaluation." (Albertson v. Superior Court (2001) 25 Cal.4th 796,
807, italics added.)
The Supreme Court recently reiterated the limitations on the
prosecution's access to treatment information, specifically
holding that section 6603 does not authorize disclosure of
therapy records directly to the People but authorizes review of
such records by the independent evaluators and grants the People
access to otherwise confidential treatment information only to
the extent it is contained in the updated mental evaluation.
(People v. Gonzales (2013) 56 Cal.4th 353, 379, fn. 11.)
The SVP law requires that an SVP be given or offered treatment
if the state has proved that he is too dangerous to be released
into society after he has served his full prison term. It
appears that the most complete way to determine if an SVP
patient continues to pose an unacceptable danger is through an
evaluation of his or her most recent psychiatric records, as
well as past reports and transcripts. However, review of
treatment records for purposes of recommitment proceedings
raises constitutional privacy and statutory confidentiality
---------------------------
<3> However, the confidentiality and other rules concerning
treatment of mentally disordered offenders, persons not guilty
by reason of insanity and persons who are incompetent to stand
trial can be described as a patchwork of statutes and court
decisions. For example, there are Evidence Code provisions
concerning MDOs and specific provisions authorizing release of
records where specified forensic patients are accused of a crime
in a DSH facility. (Welf. & Inst. Code 5328.1.)
SB 507 (Pavley ) PageR
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issues. (Sporich v. Superior Court (2000) 77Cal.App.4th at pp.
426-427.)<4>
The sponsor and author cite People v. Martinez (1994) 88
Cal.App.4th 465 in explicitly or implicitly arguing that an SVP
or alleged SVP has little or no expectation of privacy in any of
his medical or psychological records, including records of
individual psychotherapy sessions. It does not appear that
Martinez can be read that broadly, although the opinion includes
some statements to that effect. The court in Martinez also
recognized that an SVP patient has substantial privacy
expectations or rights in medical or psychological matters,
including psychotherapy records that are generally protected by
the psychotherapist/patient privilege. The court,
nevertheless, held that the state's interest in the records
outweighed Martinez's privacy interests, although the opinion
can be read as holding that giving the prosecutor access to
psychotherapy records was error, although harmless in the
context of the SVP trial. (Id., at p 479.). Further, the court
specifically rejected a privacy claim as to the records relied
upon by the experts who evaluated Martinez. The court held:
The examination of records by the prosecutor was
harmless. The relevant information in the records was
available to the prosecutor in summary form in the
reports from Drs. Vognsen and Malinek. Defendant
concedes that these witnesses were authorized to
examine and consider defendant's records, and because
they relied upon these records in forming their
opinions, it was proper for the prosecutor to examine
them concerning this information. (See People v.
Visciotti (1992) 2 Cal. 4th 1, 81["It is proper to
question an expert about matter on which the expert
bases his or her opinion and on the reasons for that
opinion"].) Moreover, their testimony constituted
substantial, if not compelling, evidence to support
the trial court's decision to sustain the commitment
petition. Consequently, any impropriety by the
----------------------
<4> The core holding in Sporich was that prosecutor could not
obtain updated or new evaluations for a commitment proceeding.
The Legislature superseded this holding by granting express
authority for the state to obtain updated or new evaluations in
Welfare and Institutions Code Section 6603, subdivision (c) -
the section and subdivision considered by this bill.
SB 507 (Pavley ) PageS
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prosecutor in reviewing defendant's records was
harmless under any standard of review. (See Chapman v.
California (1967) 386 U.S. 18; People v. Watson (1956)
46 Cal. 2d 818.) (People v. Martinez, supra, 88
Cal.App.4th 465, 482.)
The court in Martinez also appears to have relied upon upheld
the disclosure of Martinez's treatment records based on the
"dangerous patient" exception in Evidence Code Section 1024 to
the confidentiality of psychotherapy records.<5> (Id., at p.
479-484.) It appears that the court applied the dangerous
patient exception because the purpose of the former MDSO law and
the SVP law is to protect the public from sexual crimes. Such
reasoning could arguably establish a blanket exception to
confidentiality in any involuntary commitment based on the
danger to the public that flowed from a person's mental
disorder.
The California Supreme Court in People v. Gonzales, supra, 56
Cal.4th 353, held that the dangerous patient exception does not,
per se, authorize disclosure to the prosecutor in a SVP case of
the alleged SVP or SVP patient's psychotherapy records. (Id.,
at pp. 959-960.) The dangerous patient exception allows
disclosure of confidential treatment information to prevent a
specific and imminent harm. Gonzalez's holding that the
dangerous patient exception does not generally apply in an SVP
case does not, however, tell us when prosecutors can get access
to such records.
This bill would essentially eliminate the restrictions and
limitation imposed on the state in seeking to obtain
treatment records that were considered in updated
evaluations. The sponsor - the Los Angeles Attorney -
emphasizes the public safety purpose of the SVPA and
essentially argues that any right or expectation of privacy
for an SVP in his treatment records must yield to the
prosecutor's need to obtain all information necessary to
establish that a person is an SVP or remains an SVP.
-------------------------
<5> The opinion in Martinez analyzes SVP privacy and
confidentiality from a number of perspectives, without clearly
explaining the basis for its ruling. The opinion can arguably
be cited as supporting opposing arguments.
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d. Federal Court Opinion noted in Author's Background
Material- Seaton v. Mayberg
The author's background cites a decision of the Federal 9th
Circuit Court of Appeal in arguing that an SVP or an
alleged SVP has no viable claim of confidentiality or
privacy in treatment records:
In a section 1983 civil rights claim, the Ninth
Circuit court evaluated the claim and determined that
there is no constitutional right to privacy in medical
records protected by the due process clause. "Whatever
constitutional right to privacy of medical information
may exist, the California civil commitment procedure
for sexually violent predators falls outside it."
(Seaton v. Mayberg (2010) 610 P.3rd 530, 539.) The
court set forth several examples where those without
criminal convictions have no right to privacy and
found that a sexually violent predator evaluation
falls within those long established exceptions to the
confidentiality of medical communications. Other
public health and safety requirements overcoming a
right to privacy include cases of restraint due to
insanity, contagious diseases, abuse of children, and
gunshot wounds. ...California is the only state that
does not have a legislative provision granting
prosecutors access to mental health and medical
records for the purpose of carrying out sexually
violent predator commitment law.
Seaton concerned the confidentiality of the records of a prison
inmate who was being evaluated as an alleged SVP, not treatment
records of a person already committed to the SVP program. (Id.,
at pp. 532-533.) Seaton can be read as holding that the federal
constitution does not include a substantial right of privacy
beyond family and procreative matters. Specifically the court
stated that constitutional protections do not extend to medical
records generally, contrary to the assumptions of many. For
example, the privacy protections in HIPPA cannot be asserted by
an individual citizen. (Id., at pp. 533-541.)
e.California Courts and Seaton
California courts have considered Seaton and noted that the
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opinions of lower federal courts concerning federal
constitutional issues, although persuasive, are not binding on
California courts. (People v. Zapien (1993) 4 Cal.4th 929,
989.) These California decisions have found that SVP treatment
records are essentially presumed to be confidential until a
contrary rule is demonstrated. (People v. Gonzales, supra, 56
Cal.4th 353, 387, fn. 19.)
f. SVP Patients may be Reluctant to Engage in Psychotherapy if
the Records are Completely Open to Prosecutors as Evidence
that a Person is or Remains an SVP
The policy basis for the confidentiality of psychotherapy
records has been long recognized by California courts: "[A]n
environment of confidentiality of treatment is vitally important
to the successful operation of psychotherapy." (In re Lifschutz
(1970) 2 Cal.3d 415, 422.) This bill squarely presents the
issue of how this principle should be applied to SVP treatment.
It can be argued that if all therapy records are open to
prosecutors, SVP patients may be particularly reluctant to be
truthful in therapy, greatly reducing the effectiveness of
treatment. If all psychotherapy records are available to the
prosecutor, an SVP would have a considerable incentive to be
dishonest and attempt to manipulate his therapist in the hope of
creating a record that he is no longer a sexual predator.
Prior to 2006 - when an SVP was subject to recommitment every
two years - DSH personnel noted that many SVP patients did not
actively engage in treatment because they were afraid that
admissions of prior sexual misconduct would be used against them
at a recommitment trial.
Under current law, an SVP is committed indefinitely. He must
essentially create a record that he is no longer an SVP, rather
than hope that the prosecutor would not prevail at a
recommitment trial
As noted above, the SVP law is constitutional because its
purpose is treatment of mentally disordered persons, not
punishment or preventive detention. (Hubbart v. Superior Court
(People), supra, 19 Cal.4th 1138 1166-1167.) If all
psychotherapy records are open to prosecutors, SVP patients will
likely argue that the records simply become evidence for
prosecutors of SVP status, equivalent to evidence of guilt at a
criminal trial.
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Should this bill be enacted, the Legislature in coming years may
wish to review how the opening of all treatment records to
prosecutors changes the conduct of SVP patients, the matters
considered at trial and trial outcomes. Committee members may
wish to consider whether access to psychotherapy records by
prosecutors should be obtained through a motion to the court in
which the prosecutor can establish good cause for release of the
records.
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