Q: Is court-ordered therapy confidential?
A: Partly, and the parts matter. Three different rules are operating at once, and people usually only hear about one of them.
What the court definitely gets
If you are in mental health diversion, the statute is explicit: "The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant's progress in treatment."¹
That is not optional and your therapist is not doing anything wrong by complying. Ask, in the first session, exactly what goes in those reports — attendance, participation, a summary, or content — and ask for it in writing.
The same statute gives affirmative access to the file to "the county agency administering the diversion, the defendant's mental health treatment providers, the public guardian or conservator, and the court," but only "to the extent not prohibited by federal law," and only for providing and monitoring care.² That last clause is where the substance use rules below come in.
What the court does not automatically get
The psychotherapist-patient privilege still exists. The patient "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist."³ The definition of psychotherapist is wide — psychiatrists, psychologists, clinical social workers, marriage and family therapists, professional clinical counsellors, and their registered associates, interns and trainees are all in it.⁴
And the "court-appointed" exception is narrower than its reputation. Evidence Code section 1017 removes the privilege where "the psychotherapist is appointed by order of a court to examine the patient" — with a carve-out preserving it where the appointment was made at the request of a criminal defendant's own lawyer.⁵ Read the verb. It says examine. A clinician you are referred to for treatment is not a court-appointed examiner, so on the face of the statute section 1017 does not strip the privilege as to what you say in treatment.
That is a genuine distinction and it is where the value of this page sits: being ordered into treatment is not the same as being ordered to be examined, and the two have different confidentiality consequences. But say the limit honestly too — the progress reports required by section 1001.36(f)(1)(B) are a separate statutory channel, and they exist regardless.
Two exceptions apply everywhere, court case or not: the danger exception, which requires both that the therapist has reasonable cause to believe you are in such a condition as to be dangerous to yourself or to another person or property, and that disclosure is necessary to prevent the danger;⁶ and the child-victim exception, which requires all of: the patient is under 16, the therapist has reasonable cause to believe the patient was the victim of a crime, and disclosure is in the child's best interest.⁷
What cannot follow you into another case
This is the protection people most need and least often hear. A finding that you have a mental disorder, "any progress reports concerning the defendant's treatment," any firearm finding, "or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion… may not be used in any other proceeding without the defendant's consent," unless the information is independently admissible under the state constitution's victims' rights provision.⁸
The one thing a court may still consider: your previous participation in diversion, when deciding whether to grant it again.⁸
Substance use treatment has its own, stricter, federal rules
If the programme is a federally regulated substance use disorder programme, 42 CFR Part 2 applies on top of everything above, and it is stricter than California law.
Criminal-justice referrals need a specific consent. A Part 2 programme may disclose to people in the criminal justice system who made your participation a condition only if the disclosure "is made only to those persons… who have a need for the information in connection with their duty to monitor the patient's progress" and you have signed a written consent meeting extra requirements: it must state the period during which it remains in effect, that period must be reasonable, and it must state that it is revocable upon the passage of a specified time or a specified ascertainable event — which "may be no later than the final disposition" of the matter.⁹ Anyone who receives the information "may use and redisclose it only to carry out official duties with regard to the patient's conditional release."⁹
A court order alone does not force disclosure. "Its only purpose is to authorize a use or disclosure… Such an order does not compel use or disclosure. A subpoena or a similar legal mandate must be issued to compel use or disclosure."¹⁰
And using those records to prosecute you is very hard. A court may authorise it "only if the court finds that all of the following criteria are met": the crime is extremely serious, "such as one which causes or directly threatens loss of life or serious bodily injury"; there is a reasonable likelihood the records disclose information of substantial value; other ways of obtaining it are not available or would not be effective; and the injury to you, to the therapeutic relationship, and to the programme's ability to serve other patients is outweighed by the public interest.¹¹ Confidential communications specifically get a further narrow test.¹² More on substance use record privacy →
Court-ordered counselling that is not diversion
If counselling is a condition of probation rather than diversion, section 1001.36's reporting rule does not apply — but neither does its protection against use in other proceedings. Probation conditions are set under Penal Code section 1203.1, which authorises "other reasonable conditions… for the reformation and rehabilitation of the probationer."¹³ Ask the same question in writing: what is reported, to whom, and how often.
Do this: before the first session, ask the clinician, in writing, three questions — what goes into the progress reports, who receives them, and whether the programme is a federally regulated substance use programme under 42 CFR Part 2. Keep the answer. If the programme is a Part 2 programme, read the consent form's expiry and revocation clauses before signing; the regulation requires both to be in there. When a subpoena arrives →
Sources
- Penal Code §1001.36(f)(1)(B) — leginfo.legislature.ca.gov.
- Penal Code §1001.36(l).
- Evidence Code §1014 — leginfo.legislature.ca.gov.
- Evidence Code §1010(a)–(o) — leginfo.legislature.ca.gov.
- Evidence Code §1017(a) — leginfo.legislature.ca.gov. We state what the section says. Whether a particular court-ordered treatment arrangement is treated as an examination in a given case is a question for counsel, and this page does not attempt it.
- Evidence Code §1024.
- Evidence Code §1027.
- Penal Code §1001.36(k). See also §1001.36(i): a record of an arrest resulting in successful completion, or generated by applying for or participating in diversion, "shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate."
- 42 CFR §2.35(a)–(d) — ecfr.gov.
- 42 CFR §2.61(a) — ecfr.gov.
- 42 CFR §2.65(b)–(e) — ecfr.gov. For court orders sought for non-criminal purposes, see 42 CFR §2.64 — ecfr.gov.
- 42 CFR §2.63(a)(1)–(3) — ecfr.gov.
- Penal Code §1203.1(j) — leginfo.legislature.ca.gov.
All sections read on the operative text on 18 August 2026. This page describes the statute; it is not legal advice.