(1) Is an expert retained by the prosecution in a proceeding under the Sexually Violent Predator Act entitled to review otherwise confidential treatment information under Welfare and Institutions Case section 5328? (2) Is the district attorney entitled to review medical and psychological treatment records or is access limited to confidential treatment information contained in an updated mental evaluation conducted under Welfare and Institutions Code section 6603, subdivision (c)(1)?
On June 15, 2016, the court invited petitioner, the Orange County District Attorney, to file a supplemental letter brief addressing the following issues: (1) Would application of Welfare and Institutions Code section 6603, subdivision (j) (hereafter section 6603(j)) (added to the code by Stats. 2015, ch. 576, § 1), to this case violate real party in interest Richard Anthony Smith’s right to equal protection of the laws by treating him differently from mentally disordered offenders (see Pen. Code, § 2960 et seq.) and mentally disordered sex offenders (see Welf. & Inst. Code, § 6300 et seq.)? (2) Assuming no meritorious equal protection problem exists, can section 6603(j) be applied to this case despite the fact that the case arose before section 6603 was amended to add subdivision (j)? (3) Assuming no meritorious equal protection or retroactivity problem exists, is the disclosure authorized by section 6603(j) limited to medical and mental health treatment records used or relied upon in performing an updated evaluation under Welfare and Institutions Code section 6603, subdivision (c), or is disclosure also authorized for records underlying an initial or replacement evaluation? (4) Assuming no meritorious equal protection or retroactivity problem exists, inasmuch as section 6603(j) states the treatment records can be disclosed only to the “the attorney petitioning for commitment,” and further provides “[t]he attorneys may use the records in proceedings under this article and shall not disclose them for any other purpose” (italics added), can the Orange County District Attorney share the disclosed the information with its hired expert witness?
Held: 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. This case was decided on 12/13/2018.