The district attorney prosecuting a civil commitment under the Sexually Violent Predator Act (SVPA) may access treatment records supporting an updated or replacement expert report about the individual’s suitability for designation as an SVP. The prosecution filed a petition to commit Smith as an SVP. Attached to the petition were evaluations by two mental health experts designated by the State Department of State Hospitals (SDSH) to examine Smith. Later, the prosecutor requested an updated evaluation and a replacement evaluation, and an order permitting his expert to review the SDSH evaluations and medical records on which the evaluations were based. The trial court denied the request. The Court of Appeal directed the trial court to grant the motion. Smith’s petition for review was granted. Held: Affirmed. The SVPA (Welf. & Inst. Code, § 6600, et seq.) allows involuntary civil commitment of an offender who is found to be an SVP. Generally, mental health records are confidential, but there is an exception when mental health professionals evaluate an individual and agree the person qualifies as an SVP. When this occurs, copies of the evaluations and “supporting documents” are made available to the prosecution. (Welf. & Inst. Code, § 6601, subd. (d), (h)(1).) Following a split of authority in the Courts of Appeal, the Legislature added subdivision (j) to section 6603, effective January 1, 2016, clarifying that the prosecution may have access to all the records that an evaluator reviews when performing an updated evaluation. Here, the court concluded that this includes records created prior to January 1, 2016. In addition, despite the language in subdivision (j) which only refers to access to records reviewed by an evaluator performing “an updated evaluation,” this also includes access to records reviewed in replacement evaluations.

The prosecution may share access to relevant treatment records with its retained expert. Under Welfare and Institutions Code section 6603, attorneys for either side may use mental health records in SVP proceedings and shall not disclose them for any other purpose. This includes allowing a retained prosecution expert to review the records. Nothing in the text of the SVPA bars the government from sharing otherwise confidential information with its expert in an SVP proceeding. Nor would allowing such access conflict with section 5328, which makes confidential the information and records obtained in the course of providing services to an alleged SVP. Additionally, section 5328 does not limit the prosecution from sharing these records with a member of the prosecution team, provided an appropriate protective order is in place.

Smith failed to satisfy the required threshold for an equal protection claim because he did not made a credible showing of different treatment. Smith argued that section 6603, subdivision (j), which gives the prosecution significant access to the confidential therapy records of alleged SVPs, violates his right to equal protection because similar provisions do not apply to other recipients of mental health services, such as MDOs and MDSOs. But Smith did not identify in what way the statutory schemes associated with designation as either an MDO or MDSO operate differently from the SVPA with respect to discovery of these types of records. He therefore failed to make a credible showing of different treatment, which is the threshold showing required for an equal protection claim.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/S225562.PDF