In Cross v. Superior Court of Los Angeles County, No. B277600, the Court of Appeal, Second Appellate District, Division Five recently held that (1) the psychotherapist-patient privilege does not protect the subpoenaed records from disclosure to the Medical Board conducting an investigation into a physician’s care and treatment; and (2) the psychiatric patient’s constitutional right to privacy requires the Medical Board demonstrate a compelling interest that the information demanded in the subpoena is “relevant and material.”
In Cross, the California Department of Consumer Affairs (“Department”) which houses the Medical Board of California (“Board”), served Psychiatrist, Alisa Cross, M.D. (“Dr. Cross”) with subpoenas for medical records of three patients in order to investigate allegations that she improperly prescribed controlled substances to those patients. The Board obtained a Controlled Substances Utilization Review and Evaluation System (“CURES”) report that listed Schedule II-IV controlled substance prescriptions for Adderall and Vyvanse (stimulants) written by Dr. Cross over the course of three years, as well as the patients for whom the prescriptions were written. A Board investigator identified three patients whose prescriptions of controlled substances appeared to exceed the maximum daily recommended dosage and sent them authorization forms for the release of medical and psychiatric records. The form advised that if authorizations were not received, the Board would subpoena the records. Two of the patients never responded and the third responded that she had never been treated by Dr. Cross.
Dr. Cross advised the Board investigator that she had contacted two of the patients and they had refused to provide consent for the release of records. When the Board issued subpoenas for the records, Dr. Cross refused to release the records, citing psychotherapist-patient privilege and the patients’ constitutional right to privacy. The trial court granted the Department’s petition to compel compliance with the subpoenas on grounds that the Medical Practice Act precluded Dr. Cross from relying on the psychotherapist-patient privilege and there was good cause to require production of the records notwithstanding the patients’ privacy.
In holding that the psychotherapist-patient privilege does not protect the subpoenaed records from disclosure to the Department, the Court relied on Business and Professions Code §2225 which provides an exception to the psychotherapist-patient privilege when the Board is investigating whether it should discipline a physician pursuant to the Medical Practice Act, which was established by the Legislature in order to protect the life, health and welfare of patients and to prevent “the evils which could result from ignorance or incompetency or a lack of honesty and integrity.” The Court did not believe the Legislature intended the psychotherapist-patient privilege be used by a physician to “refuse legitimate demands for information from the very entity charged with enforcing the regulatory scheme that enables her to practice medicine.” This would essentially give physicians with a substantial psychiatric practice immunity from Board discipline.
The Court of Appeal further held that the Department must demonstrate a compelling interest in the information demanded in the subpoena in order to overcome the psychiatric patient’s constitutional right to privacy. The Court concluded that the State has a compelling interest in cases that involve investigation into excessive or improper prescribing of controlled substances. In fact, the Legislature identified such investigations as a priority for the Board because they represent “the greatest threat of harm” according to Business and Professions Code §2220.05(a)(3). Categories of information sought in a subpoena must be “relevant and material” to the investigation and a time limitation alone will not suffice when all records of medical treatment are sought. Use of the “catch-all” language “including, but not limited to” is overbroad and inconsistent with the “relevant and material” standard. Therefore, the language of the subpoena must be sufficiently narrow and itemized by category.
Given the current climate of increasing concern over patient prescription abuse and physician over prescription of addictive controlled substances, the Cross holding provides valuable guidance for psychiatrists who find themselves the subject of a Medical Board investigation. Although patient consent should be sought prior to disclosure, the Cross Court discussed that consent is unlikely to be obtained where the allegation is over-prescription of controlled substances and the State has a compelling interest in investigating such matters. While a psychiatrist may not rely on the psychotherapist-patient privilege to preclude disclosure of a patient’s medical records to the Board, the subpoena must be narrowly-tailored by relevant time period and specific categories that are material to the Board’s investigation.
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