(concurring and dissenting):

I part company with In re Lifschutz (1970) 2 Cal.3d 415 , 85 Cal.Rptr. 829 , 467 P.2d 557 , and hence with the majority opinion in this case, only in the holding that California Evidence Code Section 1016, as construed in Lifschutz and applied here, *1071 does not impermissibly encroach upon the patient’s constitutional right of privacy. Lifschutz incorrectly assessed the weight of the patient’s right of privacy as against competing public and private interests in the production of relevant evidence in personal injury litigation; the means adopted in Lifschutz to ameliorate the impact of Section 1016 upon the patient’s right of privacy are not sufficiently sensitive to withstand constitutional scrutiny.

Section 1016 provides that “[tjhere is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by (a) [t]he patient . . . .” “Confidential communication” is defined in Section 1012 as “information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons . . ., and' includes advice given by the psychotherapist in the course of that relationship.” As construed in Lifschutz , “communications between patient and psychotherapist, diagnosis by the psychotherapist, and advice given during the therapy relationship [are] privileged communications.” (Id. 2 Cal.3d at 429-30 , 85 Cal.Rptr. at 838 , 467 P.2d at 566 .) The questions that Dr. Caesar refused to answer all fall within the privileged communications ambit. 1

Lifschutz recognized that the psychotherapeutic patient’s interest in keeping secret confidential communication with his therapist “has deeper roots than the California statute and draws sustenance from our constitutional heritage. In Griswold v. Connecticut . . ., the United States Supreme Court declared that ‘Various guarantees [of the Bill of Rights] create zones of privacy,’ and we believe that the confidentiality of the psychotherapeutic session falls within one such zone.” (In re Lifschutz, supra, 2 Cal.3d at 431-32 , 85 Cal.Rptr. at 839 , 467 P.2d at 567 .) The confidential communications between a psychotherapeutic patient and his doctor have the indicia to place those communications squarely within the constitutional right of privacy. Psycho *1072 therapy probes the core of the patient’s personality. The patient’s most intimate thoughts and emotions are exposed during the course of the treatment. “ ‘The psychiatric patient confides [in his therapist] more utterly than anyone else in the world. . [H]e lays bare his entire self, his dreams, his fantasies, his sin, and his shame.’ ” (Taylor v. United States (1955) 95 U.S.App.D.C. 373 , 222 F.2d 398, 401 , quoting Guttmacher and Weinhofen, Psychiatry and the Law 272 (1952).) The patient’s innermost thoughts may be so frightening, embarrassing, shameful or morbid that the patient in therapy will struggle to remain sick, rather than to reveal those thoughts even to himself. The possibility that the psychotherapist could be compelled to reveal those communications to anyone, let alone to broadcast them in a legal proceeding, can deter persons from seeking needed treatment and destroy treatment in progress. (See, e. g., Taylor v. United States, supra; J. Katz, J. Goldstein, & A. Dershowitz, Psychotherapy, Psychoanalysis and the Law 726-727 (1967).)

The Supreme Court has severely restricted state intrusion into zones of privacy that have one or more of these elements that inhere in the treatment relationship between the patient and his psychotherapist. (E. g., Planned Parenthood of Central Missouri v. Danforth (1976)-U.S.-, 96 S.Ct. 2831 , 49 L.Ed.2d 788 (right to privacy in the physician-patient relationship in the context of woman patient’s decision to have an abortion without parental or spousal consent); Doe v. Bolton (1973) 410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (the right of personal and marital privacy; privacy in the physician-patient relationship; privacy in human sexuality in the abortion setting); Roe v. Wade (1973) 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (similar to Doe); Eisenstadt v. Baird (1972) 405 U.S. 438 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (privacy in human sexual relations; prohibition on contraception; state interest in health). See also, Stanley v. Georgia (1969) 394 U.S. 557, 565 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (fundamental right to satisfy intellectual and emotional needs in the privacy of one’s home); United States v. Twelve 200-Ft. Reels of Super 8MM Film (1973) 413 U.S. 123, 127 , 93 S.Ct. 2665, 2668 , 37 L.Ed.2d 500, n.4 ; (spheres of constitutionally protected privacy encompass “the intimate medical problems of family, marriage, and motherhood”); Poe v. Ullman (1961) 367 U.S. 497, 538, 552 , 81 S.Ct. 1752, 1774 , 6 L.Ed.2d 989 (Harlan, J. dissenting) (state interference in sexual conduct of married couples held intolerable invasion of privacy).) Communications between a patient and his or her psychotherapist often involve intimate medical problems of family, marriage, motherhood and fatherhood, human sexuality, and almost always concern strong emotional needs of the patient.

This sensitive zone of privacy is protected as a fundamental constitutional right. 2 Although the right is not absolute, it enters the combat zone heavily armed. It will yield only to a compelling state interest, and then will give ground only to the extent necessary to protect a compelling adverse interest. (E. g., Planned Parenthood of Central Missouri v. Danforth, supra; Roe v. Wade, supra, 410 U.S. at 163, 164, 93 S.Ct. 705 . See also Friendship Medical Ct. Ltd. v. Chicago Board of Health (7th Cir. 1974) 505 F.2d 1141 ; Word v. Poelker (8th Cir. 1974) 495 F.2d 1349 ; Roe v. Ingraham (S.D.N.Y.1975) 403 F.Supp. 931 , prob. juris, noted sub nom., Roe v. Whalen (1976) 424 U.S. 907 , 96 S.Ct. 1100 , 47 L.Ed.2d 310 . Cf. *1073 Runyan v. McCrary (1976) -U.S. -, 96 S.Ct. 2586 , 49 L.Ed.2d 415 ; Wisconsin v. Yoder (1973) 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 ; Meyer v. Nebraska (1923) 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 .)

The contest is not simply between the state’s interest in “facilitating the ascertainment of truth in connection with legal proceedings” (In re Lifschutz, supra, 2 Cal.2d at 432, 85 Cal.Rptr. at 840 , 467 P.2d at 568 ) and the patient’s interest in protecting his privacy. If it were, the patient’s interest in his privacy would easily prevail over the state’s general interest in the production of relevant evidence in a routine personal injury case. The public and private interests that are involved are more complex. The state is interested in effective access to the courts and in fair trials with respect to both plaintiffs and defendants in civil litigation. On the patient-plaintiff’s side, the state also has interests in the deterrent effect of civil litigation upon potential tort-feasors, in the health of its citizens, and in the protection of privacy of its citizens. 3 The economic interests of the plaintiff and defendant are also at stake.

The privilege sections of the California Evidence Code, including Section 1016, attempt to strike an appropriate balance between these competing interests. Lifschutz recognized that Section 1016 was not finely enough tuned to give adequate protection to the patient’s right to protect his confidential communications. The court tried to avoid constitutional difficulties with Section 1016 by construing it “not as a complete waiver of the privilege but only as a limited waiver concomitant with the purposes of the exception. Under section 1016 disclosure can be compelled only with respect to those mental conditions the patient-litigant has ‘disclose[d] ... by bringing an action in which they are in issue’ . . . ; communications which are not directly relevant to those specific conditions do not fall within the terms of section 1016’s exception and therefore remain privileged.” (Emphasis in original. Id. Id. 2 Cal.3d at 435 , 85 Cal.Rptr. at 842 , 467 P.2d at 570 .) The problem is that this formulation is almost impossible to apply, and, to the extent that it can be sufficiently refined to be able to apply it, the relevance test impermissibly encroaches on the patient’s zone of protected privacy.

The court in Lifschutz ran into immediate trouble trying to apply its test to Lifschutz. The plaintiff’s complaint there, as here, contained the typical allegations of “mental and emotional distress” arising from the tort and did not “specifically identify the nature of the ‘mental or emotional condition’ at issue.” (Id. 2 Cal.3d at 436 , 85 Cal.Rptr. at 843 , 467 P.2d at 571 .) The court confessed that it could not tell whether the ten-year old therapeutic treatment involved had any relevance, direct or not, to the mental conditions in issue. The court then shifted the burden to the plaintiff-patient to extricate himself from this dilemma by requiring “the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court.” (Id. 2 Cal.3d at 436 , 85 Cal.Rptr. at 843 , 467 P.2d at 571 .) This will not do.

The layman-patient simply cannot be expected to diagnose his own illness, to determine for himself what mental conditions are in issue in the lawsuit, or to decide what evidence is or is not “directly” related to the issue. Even a medically trained patient turned personal injury lawyer would be hard pressed in territory less slippery than mental health to prove the negative Lifschutz imposes upon him.

*1074 Moreover, as Lifschutz expressly and impliedly acknowledges, the patient must disclose at least part of the contents of the protected communications to his lawyer and to the trial judge as a condition to retaining the confidentiality of the communication. Disclosure of matters within the constitutionally protected zone is thus compelled by Evidence Code Section 1016, as construed in Lifschutz , as a condition to the patient’s access to the court in seeking redress for his or her injuries in any case in which his or her mental condition is arguably in issue. In routine personal injury cases, like that asserted by Dr. Caesar’s patient, the plaintiff-patient must forego any potential recovery for emotional or mental distress (and possibly for pain and suffering, which have at least some mental elements 4 ) to protect the confidentiality of communications to his or her psychotherapeutic doctor. In other cases, such as those based on intentional infliction of emotional distress, the plaintiff-patient must abandon any claim for redress because emotional distress is both an essential element of the tort and the primary and often the sole damage suffered.

Lifschutz says that the compulsion imposed by Section 1016 is justified because “the patient’s own action initiates the exposure” and the “ ‘intrusion’ into a patient’s privacy remains essentially under the patient’s control.” ( 2 Cal.3d at 433 , 85 Cal. Rptr. at 840 , 467 P.2d at 568 .) The implication is that constitutional infirmities disappear because the patient waives his right of privacy when he seeks legal redress for his injury. There is nothing voluntary about the injury suffered. The injured patient “controls” the “intrusion” only in the sense that he can give up redress instead of seeking legal relief for the injury. If he seeks redress for his injury, relinquishment of his constitutionally protected zone of privacy is in no sense voluntary; Section 1016 compels him to choose between his privacy and his right to seek legal redress. That Hobson’s choice is not a waiver; as California Evidence Code Section 912(a) acknowledges, a waiver of the privilege must be “without coercion.” 5

In short, the Lifschutz’ effort effectively to narrow Section 1016 is a failure. Although no formula in this context will be completely successful, I propose means for restricting Section 1016 which, I believe, more adequately protect the patient’s privacy right without unduly curbing a civil defendant’s access to evidence. As applied to civil personal injury litigation, I would restrict the concept of relevance used in Section 1016 (“There is no privilege under this article as to a communication relevant to an *1075 issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) the patient . . ..”) as follows: No confidential communication between a psychotherapeutic patient and his treating doctor shall be deemed relevant for the purpose of Section 1016, except the fact of treatment, the time and length of treatment, the cost of treatment, and the ultimate diagnosis, unless the party seeking disclosure of the communication establishes in the trial court a compelling need for its production.

The restriction is limited to treating doctors. Health of the patient is a primary consideration only in the treatment situation. Moreover, the protection of privacy is critical in the context. of treatment. A personal injury plaintiff who consults a psychotherapist for examination and diagnosis can reasonably be expected to know that his communications with the psychotherapist will not be privileged. The primary, if not the sole purpose, of the psychotherapist and the patient in the nontreatment setting is to secure the opinion of the doctor for the purpose of transmitting that information to third persons — the patient’s lawyer, the court, and, potentially, the jury.

The fact of treatment and the time, length, and cost of treatment, at best, are only arguably “confidential communications” within Evidence Code Section 1012. (See In re Lifschutz, supra, 2 Cal.3d at 439 , 85 Cal.Rptr. at 845 , 467 P.2d at 557 .) The treating doctor’s diagnosis is a confidential communication. I would compel disclosure of the diagnosis because the disclosure is necessary to permit a defendant to decide whether that mental or emotional condition has some bearing upon the issues in the personal injury case and, at least in a preliminary way, to lay some foundation for his later motion to compel revelation of other confidential communications. Moreover, this information will also help the defendant to decide whether to have the plaintiff examined and diagnosed by a psychotherapist of his own choosing. 6

My narrowing of the waiver required by Section 1016 gives neither the patient-plaintiff full protection of his privacy nor the defendant evidentiary carte blanche. But the patient’s constitutional right of privacy requires no less protection from intrusion, and a defendant’s right to a fair trial would be unduly impaired with any lesser access to evidence.

Still available both to the patient-plaintiff and to the defendant is the trial court’s sensitive application of the waiver test to the facts in a particular case, and the trial court’s use of protective orders to prevent “annoyance, embarrassment or oppression.” (Cal.Code Civ.Proe. § 2019(b)(1); In re Lifschutz, supra, 2 Cal.3d at 436-38 , 85 Cal. Rptr. 844 -45, 467 P.2d 557 ; cf. Department of the Air Force v. Rose (1976) 425 U.S. 352 , 96 S.Ct. 1592 , 48 L.Ed.2d 11 .)

In conclusion, the breadth of the waiver imposed by Evidence Code Section 1016 as construed and applied to require Dr. Caesar to reveal confidential communications with his patient protected by the patient’s right of privacy exceeds constitutional bounds. I would reverse the order denying Dr. Caesar’s habeas petition, with directions to grant the writ within thirty days unless the contempt order were earlier vacated by the California court.

. 1. “Did he [Dr. Klemme] say why, in his opinion it [a talk with Dr. Caesar] might be helpful to her?

. Lifschutz did not address the question whether confidential communications within the protection of a constitutional right of privacy were “fundamental” or whether the patient’s right could be overcome by interests less weighty than “compelling.” One explanation is that the court did not have the benefit of the postGriswold decisions. Another factor was that the particular questions that Dr. Lifschutz refused to answer were only preliminary and did not reach the critical zone of privacy constitutionally protected. “The questions posed to Dr. Lifschutz, however, have inquired only into whether he treated [the patient-plaintiff], and whether he possessed records regarding this patient. Defendant has not yet asked Dr. Lifschutz about the nature of his treatment of the plaintiff, his diagnosis, or the content of any communication.” (Id. 2 Cal.2d at 430, 85 Cal. Rptr. at 839 , 467 P.2d at 567 .)

. The state as well as the individual has an interest in preserving the constitutional right of privacy. Any society that is unable to preserve to its members the autonomy of their personalities cannot long endure. A free society cannot exist at all without according substantial protection to the privacy of its citizens. (E. g., Boyd v. United States (1886) 116 U.S. 616, 630 , 6 S.Ct. 524 , 29 L.Ed. 746 ; Olmstead v. United States (1928) 277 U.S. 438, 464-65, 478-79 , 48 S.Ct. 564 , 72 L.Ed. 944 (Holmes & Brandeis, J.J., dissenting). A. Westin, Privacy and Freedom 8-63, 330-38 (1st ed. 1967); Fried, “Privacy,” 77 Yale L.J. 475 (1968).)

. E. g., Roberts v. Superior Court of Butte County (1973) 9 Cal.3d 330 , 107 Cal.Rptr. 309 , 508 P.2d 309 . The California Supreme Court upheld an attempted limitation on mental condition. The plaintiff alleged that she was “sick, sore, lame and disabled,” but she did not allege an emotional distress claim to the extent that her psychiatrist had to testify, even though “sore” and “disabled” might have emotional connotations. Roberts thereby avoided airing her severe emotional problems, but simultaneously forfeited any recovery for emotional trauma due to the alleged tort.

. Dr. Caesar and the majority have each advanced waiver theories. The majority says that putting in a claim for pain and suffering waives the right to privacy in respect of information relevant thereto. Dr. Caesar counters that it is impermissible to force Seebach to either “delimit” her claim, or waive her privacy right. Neither argument resolves the dilemma, because the issue is not whether there is any waiver at all, but the extent of the waiver; i. e., the mechanics of deciding what is relevant. In addition, even if Boddie v. Connecticut (1971) 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 equips Seebach with a due process right of access to the courts (see Wiren v. Eide (9th Cir. 1976) 542 F.2d 757 ), a dubious proposition (Ortwein v. Schwab (1973) 410 U.S. 656 , 93 S.Ct. 1172 , 35 L.Ed.2d 572 ; United States v. Kras (1973) 409 U.S. 434 , 93 S.Ct. 631 , 34 L.Ed.2d 626 ; Ad Hoc Comm, on Jud. Admin, v. Massachusetts (1st Cir. 1973) 488 F.2d 1241 , 1244 n.3) it is juxtaposed against the defendants’ equally insistent due process right to maximum relevant evidence. (Cf. United States v. Nixon (1974) 418 U.S. 683, 711 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 .) Dr. Caesar’s second waiver theory, that a psychotherapeutic patient, advised by counsel with a palpable financial interest in the case, cannot make a knowing waiver is irrelevant. We are not dealing with Seebach’s actual waiver — which was revoked — but with the implied-in-law waiver made by claiming pain and suffering.

. The majority opinion assumes that diagnostic examinations of this kind will not provide adequate insight into the plaintiffs medical history effectively to protect the defendant’s right to access to this information. The deposition of Dr. Hume shows that the assumption is unfounded in this case.