California’s psychotherapist-patient privilege is broad, but it is not absolute. The exceptions to the psychotherapist-patient privilege in California fall into a defined list in the Evidence Code: when a patient poses a serious danger, when the patient puts their own mental condition at issue in litigation, when a court orders the evaluation, when therapy is used to plan a crime or fraud, when therapist and patient sue each other, when a child victim’s welfare requires it, when mandated reporting laws apply, when the patient initiates a sanity or competence proceeding, and when some other law already requires disclosure. The privilege can also be lost by waiver, which is a separate problem.
The Baseline Rule the Exceptions Cut Into
Evidence Code Section 1014 gives the patient the right to refuse to disclose confidential communications with a psychotherapist and to prevent the therapist or anyone else from disclosing them.1California Legislative Information. California Code Evidence Code 1014 – Psychotherapist-Patient Privilege The privilege belongs to you, the patient, and covers communications made in confidence during the therapeutic relationship, including diagnoses and advice. Your therapist is required to claim the privilege for you when they are present at a proceeding where disclosure is sought, unless you have told them otherwise.2California Legislative Information. California Code Evidence Code – Psychotherapist-Patient Privilege – Section: 1015
That is the starting point. Everything below is a situation where the law has decided a different interest wins.
The Dangerous Patient Exception
This is the exception most patients have heard about, usually by the shorthand “Tarasoff.” Under Evidence Code Section 1024, the privilege does not apply when the therapist has reasonable cause to believe the patient is in a mental or emotional state that makes the patient dangerous to themselves or others, and that disclosure is necessary to prevent the threatened danger.3California Legislative Information. California Code Evidence Code 1024 – Dangerous Patient Exception Both pieces matter. A therapist’s belief that you are dangerous is not enough on its own; disclosure must also be necessary to prevent the harm.
The companion rule on the therapist’s side is Civil Code Section 43.92, which codifies the duty established in Tarasoff v. Regents of the University of California (1976). A therapist has no liability for failing to protect others from a patient’s violence unless the patient has made a serious threat of physical violence against a reasonably identifiable victim; when that threshold is met, the therapist discharges the duty by making reasonable efforts to communicate the threat to the victim and to law enforcement.4California Legislative Information. California Code Civil Code 43.92 – Duty to Protect The Legislature has framed this as a duty to protect rather than a general duty to warn, though the practical steps look the same.
The Patient-Litigant Exception
This is the exception that actually trips up the most people. If you file a lawsuit and put your own mental or emotional condition in issue, Evidence Code Section 1016 removes the privilege for communications relevant to that condition.5California Legislative Information. California Code Evidence Code 1016 – Patient-Litigant Exception The common scenarios are a personal injury claim that seeks damages for emotional distress, a claim filed on your behalf after your injury or death, and a beneficiary’s claim under a contract to which you were a party.
The exception is narrower than it sometimes feels in practice. Courts limit disclosure to communications relevant to the mental health issue you raised, not your entire therapy history. Still, once you put your mental state at issue, opposing counsel will push to widen that opening. If you are considering a claim that involves emotional or psychological harm, factor this in before filing.
Court-Ordered Evaluations
Communications you make during a court-ordered psychological examination are generally not privileged, because the point of the exam is to produce information for the court. There is a specific carve-out: if a criminal defendant’s attorney requested the appointment to help decide whether to raise an insanity defense, those communications remain protected.6California Legislative Information. California Code Evidence Code – Psychotherapist-Patient Privilege – Section: 1017
Crime or Fraud
Under Section 1018, the privilege does not cover communications made while the patient was seeking or using the therapist’s services to help commit a crime or a tort, or to escape detection after one.7California Legislative Information. California Code Evidence Code – Psychotherapist-Patient Privilege – Section: 1018 This parallels the crime-fraud exception that applies to attorney-client privilege.
Breach of Duty Between Therapist and Patient
When either party sues the other over the therapeutic relationship, Section 1020 removes the privilege for relevant communications.8California Legislative Information. California Code Evidence Code 1020 – Breach of Duty A malpractice plaintiff cannot block the therapist from describing the treatment at issue, and a therapist suing over, say, unpaid fees cannot invoke the privilege to shield communications relevant to that dispute. The rule runs both ways.
Child Victims and Mandated Reporting
Two related rules apply when children are involved. First, Evidence Code Section 1027 removes the privilege when the patient is under 16 and the therapist has reasonable cause to believe the child has been the victim of a crime, provided disclosure is in the child’s best interest.9California Legislative Information. California Code Evidence Code 1027 – Child Victim Exception
Second, California’s Child Abuse and Neglect Reporting Act requires therapists to report suspected abuse or neglect of a child to law enforcement or child protective services when, in their professional capacity, they know or reasonably suspect it. A therapist who fails to report commits a misdemeanor punishable by up to six months in jail, a fine of up to $1,000, or both.10California Legislative Information. California Code Penal Code 11166 – Mandated Reporter Duties The reporting duty effectively overrides the privilege for the information that must be reported.
Sanity and Competence Proceedings
When a criminal defendant raises their own sanity, the privilege does not apply to communications relevant to that question.11California Legislative Information. California Code Evidence Code – Psychotherapist-Patient Privilege – Section: 1023 Similarly, when the patient or someone acting on the patient’s behalf initiates a proceeding to establish the patient’s competence, relevant communications are not privileged.12California Legislative Information. California Code Evidence Code 1025 – Proceeding to Establish Competence The patient side has to be the one who started the proceeding; the prosecution cannot use these provisions to pry open therapy records on its own.
Information That Must Be Reported Under Another Law
Section 1026 is a catch-all. If a therapist or patient is already required by some other law to report information to a public official, or to record it in a public office open to inspection, the privilege does not block that reporting.13California Legislative Information. California Code Evidence Code 1026 – Required Reports This closes the loop with reporting obligations beyond the child abuse and dangerous patient rules.
Losing the Privilege by Waiver
Exceptions are built into the Evidence Code. Waiver is something you do yourself. Under Section 912, the privilege is waived when the holder, without coercion, discloses a significant part of a privileged communication or consents to someone else disclosing it. Consent can be a signed authorization. It can also be implicit, as when you have standing and opportunity to assert the privilege in a proceeding and fail to do so.14California Legislative Information. California Code Evidence Code 912 – Waiver of Privilege
The code does protect against some accidental waivers. Sharing privileged therapy information with your attorney does not waive the therapy privilege, because that disclosure is itself protected by attorney-client privilege. A disclosure made in confidence that is reasonably necessary to accomplish the purpose of the therapy, such as the therapist consulting another specialist about your treatment, is also not a waiver.
What is not protected is loose talk. Discuss your sessions where strangers can hear, post about them, or voluntarily hand records to a third party, and you may have waived the privilege for that content.
After the Patient Dies
The privilege survives death. Under Section 1013, the personal representative of the deceased patient’s estate becomes the new holder and decides whether to assert or waive it.15California Legislative Information. California Code Evidence Code – Psychotherapist-Patient Privilege – Section: 1013 A therapist cannot unilaterally release the records so long as a holder exists. The same exceptions can still apply, though. If a wrongful death or survival action puts the deceased patient’s mental condition at issue, the patient-litigant exception can open relevant communications. Coroners and medical examiners may also obtain limited information under separate state reporting laws when investigating a death.
Federal Court and HIPAA
Two boundary points are worth knowing. First, if your matter is in federal court, the California Evidence Code does not control; federal courts apply the psychotherapist-patient privilege recognized in Jaffee v. Redmond, 518 U.S. 1 (1996), under Federal Rule of Evidence 501.16Justia U.S. Supreme Court Center. Jaffee v. Redmond, 518 U.S. 1 The federal privilege covers confidential communications with licensed psychiatrists, psychologists, and social workers, and the Supreme Court declined to subject it to case-by-case balancing. Its exceptions are not identical to California’s.
Second, HIPAA is a federal privacy floor, not a litigation privilege. Where California law is more protective, state law governs; where HIPAA is more protective, the federal rule applies.17HHS.gov. Preemption of State Law HIPAA does give heightened protection to “psychotherapy notes” kept separate from the regular medical record, requiring a specific written authorization before most disclosures.18eCFR. Title 45 Section 164.508 – Uses and Disclosures for Which an Authorization Is Required That is a disclosure rule, not an evidentiary privilege, and it does not override the California exceptions above.