Access to Treatment Records in Proceedings for Evaluation and Potential Commitment of Sexually Violent Predators

Facts of the Case

In 2002, Richard Anthony Smith was a prison inmate facing upcoming parole. The Orange County District Attorney filed a petition to commit him as an SVP based on evaluations by two psychologists, Dana Putnam, PhD, and Charles Jackson, PhD. After a series of continuances, in 2006 the district attorney requested updated and replacement evaluations, in accordance with the Cal. Welf. & Inst. Code § 6603 (c) (2016), which permitted the district attorney to request state evaluators to perform an updated evaluation or a replacement evaluation if the original evaluators were no longer available. After several continuances, in 2011 Mr. Smith was re-evaluated by Dr. Putnam and was evaluated by Nancy Rueschenberg, PhD. Both evaluators opined that Mr. Smith no longer qualified as an SVP. Based on the updated evaluations, Mr. Smith filed a motion to dismiss the SVP petition. His motion was denied by the trial court and granted by the court of appeal, which directed the trial court to dismiss the SVP petition. The case was then transferred to the state supreme court, and then transferred back to the court of appeal for reconsideration. In 2014, the district attorney sought a new and more current evaluation from Dr. Putnam and also requested that their retained expert, Dawn Starr, PhD, be allowed to review the SVP evaluations and their supporting background records. Although the trial court first denied the request, the appellate court disagreed, concluding that the district attorney's retained expert should be able to review the evaluations and records with an appropriate protective order. The state supreme court granted Mr. Smith's petition for review in this case. The court considered Mr. Smith's privacy interests and the interests of the government, and whether the district attorney may review confidential mental health records and prior evaluations on which SVP re-evaluations relied, and, if so, whether those records may also be shared with an expert retained by the district attorney for the purpose of assisting with the SVP proceeding.

Ruling and Reasoning

The court considered two questions first, whether the prosecuting district attorney pursuing a commitment under the California Sexually Violent Predator Act (SVPA) is entitled to directly review the mental health treatment records that served as a basis for the SVP evaluations, and, if so, whether these records may also be shared with an expert who has been retained by the district attorney.

In addressing the first question, the court noted that, prior to 2015, appellate courts had disagreed as to whether prosecuting district attorneys could directly access full treatment records on which SVP evaluations were based, or could only see the limited excerpts contained within the evaluation. After the court granted review of this case, the California legislature amended the SVPA in July 2015 (enacted January 1, 2016) to explicitly state that the prosecuting attorney shall have access to all the records on which the evaluators have based their evaluations (Cal. Welf. & Inst. Code § 6603 (j) (1) (2016)). Mr. Smith argued in his petition that the amended statute should not be retroactive and should therefore not apply to records supporting his 2011 evaluations, which included communications with mental health professionals. The Supreme Court of California disagreed, citing its decision in Albertson v. Superior Court, 23 P.3d 611 (Cal. 2001), in which it found that an amended statute applied “to any future pretrial and/or trial proceedings in this litigation” (Albertson, p 617). Similarly, in this case of People v. Superior Court (Smith), the court concluded that “even though treatment records might have been created before section 6603 was amended, the statute now allows copies of those records to be disclosed to the district attorney to the extent that they were reviewed as part of an updated or replacement evaluation” (People v. Superior Court (Smith), p 466).

Mr. Smith also argued that the plain letter of the statute meant that his treatment records should not be shared with the district attorney based on a narrow reading of the SVPA amendment, which refers only to “updated” as opposed to “replacement” evaluations that are performed when the original evaluator is no longer available. The Supreme Court of California disagreed with his arguments and concluded that the best understanding of the amendment language “encompasses all evaluations that update previous SDSH evaluations” (People v. Superior Court (Smith), p 467).

Mr. Smith had made an additional contention that granting the district attorney access to his underlying mental health records violated his constitutional right to equal protection because others receiving the same therapies, such as mentally disordered offenders and mentally disordered sex offenders, may have their treatment records kept confidential. The Supreme Court of California responded that Mr. Smith does not distinguish how the governing statutes for those other offenders differ from the SVPA in terms of access to these records. Citing United States v. Armstrong, 517 U.S. 456 (1996), the court rejected Mr. Smith's argument as failing to satisfy the required threshold for an equal protection claim.

The second question considered by the Supreme Court of California was whether mental health treatment records may be reviewed by the district attorney's retained expert. This matter was not directly addressed in the 2016 SVPA amendment, though the statute does state that the district attorney may not disclose confidential records for other purposes. The court noted that while an earlier draft of the bill required the court's consent to allow the prosecution to permit access to the records by its retained expert, this was removed in the final amendment. The court concluded that nothing in the text of the SVPA amendment explicitly bars the government from sharing otherwise confidential records with an expert it has retained for the purpose of assisting with SVP proceedings, and that the text “at the very least suggests that attorneys may disclose them” in SVP proceedings (People v. Superior Court (Smith), p 469).

In considering the necessity of disclosing records, the court broadened its analysis to consider the context of the entire SVPA as well as section 5328 of the Welfare and Institutions Code, which establishes records as confidential. The SVP designation requires conviction for a sexually violent offense and a diagnosable mental health condition that makes the individual likely to engage in sexually violent behavior. Standardized evaluations by mental health experts are essential in establishing the latter criteria, and “the civil commitment trial usually turns on the quality and credibility of the expert witnesses and the extent to which their evaluations are persuasive” (People v. Superior Court (Smith), p 471). A primary way that one party counters an opposing expert's opinion is by challenging the bases for the expert's opinion. This proceeding would be of limited value if the district attorney did not have “the assistance of an expert to interpret and explain the significance of the specialized information at issue” (People v. Superior Court (Smith), p 471).

In weighing the value of access to information against the importance of confidentiality of treatment, the court noted that section 5238 lists numerous exceptions to confidentiality, including an exception for disclosure “[t]o the courts, as necessary to the administration of justice” (Cal. Welf. & Inst. Code § 5328 (a) (6) (2019)). Citing People v. Garcia, 391 P.3d 1153 (Cal. 2017), which emphasized the need for open communication among professionals working with sex offenders, the court concluded that as long as an appropriate protection order is in place, confidential treatment records may be shared among members of the prosecution team. The court further determined that, because these records are already shared with SDSH mental health professionals and the district attorney, an additional potential disclosure of treatment records to the prosecution's expert would be unlikely to inhibit an individual from participating fully in treatment.