Statements to Therapist OKd as Evidence : Courts: In a ‘major victory’ for prosecutors, state justices put new limits on rule of confidentiality.

The state Supreme Court on Monday widened the use of statements patients make to their psychotherapists, ruling that a threat to harm may be presented as evidence in court to help convict the patient of a crime.

In what a state prosecutor called a “major victory,” the justices, by a vote of 4 to 3, upheld the death sentence of George Herbert Wharton for the murder of Linda Smith in Santa Barbara in 1986.

The court held that a warning Wharton’s therapists had given Smith of potential harm at his hands--along with the threats Wharton made that triggered the warning--were both properly used at trial to show the killing was premeditated.

State law generally prohibits the disclosure of statements made by patients during psychotherapy. But, in an exception to the rule of confidentiality, therapists are required to warn potential victims of threats of harm. At issue before the court was whether those threats also were admissible in a criminal proceeding--or whether the privilege of confidentiality still applied.

The court majority, in a 119-page opinion by Chief Justice Malcolm M. Lucas, held that once the exception has been exercised to issue a warning, “there is no privilege (of confidentiality).” Expanding on a 1990 ruling, the court said further that when confidential statements are revealed by a therapist to a third party, the statements are no longer confidential.

The majority rejected the notion that using such statements in court violated the right to privacy. It also brushed aside contentions by the California Psychiatric Assn. and other groups that allowing disclosure would discourage violence-prone people from seeking psychotherapy.

The trial court, in admitting the incriminating statements as evidence against Wharton, “carefully balanced the defendant’s rights with the state’s interest in seeking to redress wrongs committed against its citizens,” Lucas wrote.

In dissent, Justice Stanley Mosk contended that the purpose of the exception was to “prevent future harm”--but not to allow privileged statements to be used later in court. Mosk concluded that there was insufficient evidence that the killing was premediated--a prerequisite to a first-degree murder conviction and a sentence of death--and that Wharton’s conviction and sentence should be overturned.

Justice Allen E. Broussard, joined by Justice Joyce L. Kennard, issued a separate dissent, saying that while the psychotherapists’ warning to the victim should have been admitted as evidence, the statements Wharton made to the therapists should not have been used.

The ruling came on a complex and often-troublesome issue for the courts: when, if ever, to make an exception to the protection the law gives to the confidential relationship between patient and therapist.

The issue also has arisen in the separate and widely publicized case of Erik and Lyle Menendez, now facing murder charges in the killing of their parents in Beverly Hills. Last month, a state Court of Appeal ruled that tape-recorded statements made by the two young men to their therapist can be used against them in court.

State Deputy Atty. Gen. Robert D. Breton called Monday’s ruling “a major victory for the people,” saying the court had strengthened and clarified the law in this area. “Defendants no longer will be able to hide behind the law to prevent admission of such evidence,” he said.

Breton also rejected as “speculative” contentions that the ruling would deter troubled people from seeking psychotherapy. Admission of such evidence, he said, “clearly outweighs any interest in preserving confidentiality or encouraging a patient to seek out help.”

Horace N. Freedman of Beverly Hills, attorney for Wharton, expressed dismay with the ruling. “I believe it is wrong,” Freedman said. “It is contrary to what the Legislature intended in drafting the law of confidentiality.”

The case before the court arose in 1986 when Wharton, who previously had voluntarily sought mental health counseling, was accused of the beating death of Smith, his girlfriend. Based on statements Wharton made during therapy, the therapists several weeks before had called Smith and warned her she was in danger. The woman acknowledged the warnings but continued seeing Wharton.

Later, at trial, prosecutors sought and were given permission to call the psychotherapists as witnesses to testify about the statements that caused them to notify the victim. A Santa Barbara Superior Court jury convicted Wharton of first-degree murder and in 1987 rendered a sentence recommendation of death.

On appeal to the state Supreme Court, Wharton contended, among other things, that the exception to the rule of confidentiality should not be applied at trial after a victim is dead. The purpose of the exception is to avert danger to others--and that issue is irrelevant after the harm has occurred, he argued.

The high court rejected that argument as “absurd,” saying that if that view of the law were adopted, a dangerous patient could regain the protection of the privilege by killing his victim.