PRIVACY: Mathews v. Harris* (California Supreme Court, S240156)

CMA, along with other amici, filed an amicus curiae brief in this case challenging the changes made to the Child Abuse and Neglect Reporting Act by A.B. 1775 (Melendez) that requires psychotherapists, including physicians, to report to law enforcement or child welfare agencies patients who disclose that they have downloaded, streamed, or accessed child pornography online. The plaintiffs, a group of counselors and licensed marriage and family therapists, posit that A.B. 1775 violates patients’ rights to privacy under the California Constitution, erodes the psychotherapist-patient privilege, and adversely affects patient trust and confidentiality which is foundational to effective therapy.

CMA’s brief argues that psychotherapy patients have a constitutional right to privacy in seeking psychotherapeutic treatment even if the treatment entails a communication that refers to conduct consisting a crime. The therapist has a duty not to disclose but for specified exceptions where a patient obtains the services to commit a crime or where the patients reveals intent to cause harm to an identifiable victim. The brief also argues that the lower courts had an insufficient record to meaningfully analyze whether A.B. 1775 specifically violates a patient’s constitutional right to privacy.

On December 23, 2019, the California Supreme Court ruled in favor of the plaintiffs, holding that they had asserted a cognizable privacy interest which attaches to a patient's disclosures during voluntary psychotherapy, although not to the patient's underlying conduct, and remanded the case for further proceedings to determine whether the statute's purpose of protecting children is actually advanced by mandatory reporting of psychotherapy patients who admit to possessing or viewing child pornography.