dissenting.
I would hold that defendant’s statements to the psychiatrist and to the Dammasch receptionist are privileged under OEC 504, and I therefore dissent.
The majority does not appear to dispute — and could not — that defendant’s objective in calling the hospital was to obtain professional assistance from a psychiatrist. The majority also acknowledges that the psychiatrist represented to defendant that his communications were confidential. The responses the majority makes to those significant facts are that the doctor’s representation of confidentiality “is not controlling” and that “the fact that defendant may have *651thought that his statements were privileged did not make them privileged.” It is true that neither the psychiatrist’s assurance nor defendant’s misplaced reliance establishes conclusively that his communications to the psychiatrist were privileged. However, the facts that defendant sought confidential professional services and that the psychiatrist purported to be rendering them seem to me to be the starting point of and what gives rise to our inquiry; it is simply insufficient to treat those facts as inconsequential, because they do not end the inquiry.
The majority also says that the
“* * * trial court found that Dr. Saville was not engaged in the ‘diagnosis or treatment of a mental or emotional condition.’ The record supports that finding and we are bound by it.” 67 Or App at 644-45. (Citation omitted; footnote omitted.)
In that context, as in others, the majority confuses questions of fact and questions of law. There is no significant dispute about the relevant facts. Whether the doctor was engaged in “diagnosis or treatment of [defendant’s] mental or emotional condition” within the meaning of OEC 504 under the facts found by the trial court is a legal issue, and it is immaterial to the scope of our review that the trial judge attached statutory terminology to his fact findings. See 67 Or App at 644-45, n 6.
With the foregoing as prologue, I turn to an examination of what happened here. The psychiatrist testified that her reason for speaking with defendant was to keep him occupied until the police located him. However, the relevant point is not why she spoke with him, but whether the substance of the conversation came within the privilege defined by OEC 504. This was not a situation in which the psychiatrist told defendant that she did not understand their conversation to be related to her professional role, or one in which she listened in silence while defendant spoke, or even one in which she simply engaged in polite chatter and offered comforting reassurances. She spoke with defendant in the basic way she would speak with a patient in a diagnostic or treating situation. She testified:
“Q. [Defendant’s Attorney] During this conversation the duration of which you said is ten or fifteen minutes, it is true, *652is it not, that you went into a great deal of background information with Mr. Miller?
“A. That seemed to be the safest thing to talk about.
“Q. And is it true that you developed what might be called the basic background information in a psychiatric interview? Where were your born? What do you do for a living, other pertinent items of information?
“A. Some. I got some information from him. Not by any stretch of the imagination was it complete.
“Q. I didn’t say it was complete. It was basically background, similar to what you obtain from your training in a psychiatric interview?
“A. Yes.”
In addition, the psychiatrist spoke with defendant about his reasons for the killing, about his “having fantasies about a situation [when] someone was killed during a homosexual act” and about other matters germane to defendant’s actions and his feelings.
The psychiatrist indicated that, although Dammasch does not provide outpatient treatment, psychiatric counseling is sometimes provided by telephone to persons who call because they are upset or have a problem. She also testified in effect that she did not consider herself to be acting in a psychotherapeutic role, that she did not expect an ongoing psychiatrist-patient relationship to develop and that there were differences between the approach she would follow with a patient and the approach she followed with defendant. However, none of that goes to the point.
Whether or not the psychiatrist regarded defendant as a present or prospective patient, she used her professional methodology in her conversation with him. Even assuming the correctness of the state’s propositions that the privilege cannot arise except when there is a consensual treating or diagnostic relationship and that defendant’s subjective understanding that the conversation was privileged is insufficient in itself to create a privileged relationship, it does not follow that the psychiatrist’s subjective understanding of the purpose of the conversation made it non-privileged. A patient who has been assured of confidentiality and who has participated in what is in fact a psychiatric interview cannot be denied the benefit of the privilege simply because the psychiatrist regards *653the exercise as secondary to some other objective of which the patient is unaware. Summarily stated, the doctor perceived her objective to be to keep defendant on the phone rather than to act as his psychiatrist, but the way she achieved that objective was by acting as his psychiatrist.
The state argues:
“Even assuming, arguendo, that defendant’s conversations with the Dammasch personnel qualified as privileged material, the emergency circumstances at hand fully justified the overriding of that privilege. Professionals, like anyone else, have moral and ethical responsibilities to assist third parties in life-threatening situations. * * * Defendant reported ongoing criminal behavior to [the psychiatrist] and [the receptionist], and they had no way of knowing whether the victim of defendant’s ‘murder’ was dead or alive. People who appear dead to the layperson frequently are resuscitated by trained medical personnel. The psychiatrist and the operator did what they were ethically bound to do under the circumstances. As the trial court noted, the need to save a life superseded the confidentiality of any purported privilege.” (.Citations omitted.)
I agree that psychiatrists can have and that the doctor here may have had an ethical obligation that was in conflict with and prevailed over the obligation to maintain the confidentiality of privileged communications. However, the issue is whether any prospective evidentiary use can be made of defendant’s statements, not whether the psychiatrist’s past actions violated the privilege or were justified. If, as I conclude, defendant’s statements were made on a privileged occasion, there is no authority or logical basis for concluding that the psychiatrist’s disclosure of the statements to meet a moral duty to the victim could constitute a waiver of the evidentiary privilege by defendant.
The majority states that “[statutory privileges are strictly construed.” I do not disagree with that abstraction. However, the majority’s conclusion that defendant’s statements to the psychiatrist are not privileged is not a strict construction of OEC 504. It is a judicial repeal.
I also disagree with the majority’s conclusion that defendant’s statements to the hospital receptionist are unprotected by OEC 504. The receptionist testified that defendant’s initial statement to her when she answered the phone was that he wanted to speak with a doctor. Only after *654she asked him what the problem was did he tell her what he had called to discuss and later did consult the psychiatrist about. The receptionist also testified, in effect, that she routinely screens unsolicited telephone calls before putting them through to the psychiatrist on duty. The receptionist’s testimony was uncontroverted, and defendant could have had no more reason at the time they talked than a factfinder could have now to believe that giving the message to the receptionist was not a “reasonably necessary” precursor to communicating directly with the psychiatrist. Moreover, neither defendant nor a factfinder could reasonably think that the psychiatrist or her superiors had not authorized the receptionist to elicit the communication that defendant intended to make to the psychiatrist herself. The psychiatrist did not differ in that respect from other professional persons whose clients’ and patients’ communications are protected by the evidentiary privileges. The simple fact is that few doctors or lawyers answer their own phones.
Historically, there has been a division of authority about whether, to what extent and under what circumstances confidential communications made to or in the presence of agents and assistants of professional persons are insulated against evidentiary disclosure. See McCormick, Evidence (2d ed 1972), §§ 91, 101; Annot., 47 ALR2d 742 (1956). However, when a privilege statute expressly includes communications heard by or made to persons associated with the doctor, lawyer or other privileged consultant, a restrictive view of evidentiary protection for confidential communications to the consultant’s assistants is untenable. See McCormick, Evidence, supra, §101; Ostrowski v. Mockridge, 242 Minn 265, 65 NW 2d 185, 47 ALR2d 733 (1954). OEC 504(l)(a) specifically provides that, under certain circumstances, confidential communications to persons other than a psychotherapist are insulated from disclosure.
The evidence was uncontroverted that defendant could not have communicated anything to the psychiatrist, unless he first told the receptionist what he wanted to tell the doctor. His communication to the receptionist was “reasonably necessary for [its] transmission” to the psychiatrist, and it was therefore privileged under the statute. The majority criticizes the reasoning that leads me to that conclusion and *655states that my opinion “regrettably concentrates on the ‘reasonably necessary’ language of the clause in question and ignores the word ‘present.’ ” 67 Or App at 644, n 5. There is a good reason for ignoring the word “present”: it is not part of the clause in question. The relevant clause of OEC 504(1) (a) says nothing about persons present when a communication to a psychiatrist is made, but refers to “[pjersons reasonably necessary for the transmission of the communication”; the word “present” appears in the preceding clause, which has nothing to do with the quoted one and nothing to do with this case. The majority also suggests that, under my reasoning, a confession to the gardener at Dammasch would be privileged. The answer to that reductio ad absurdum is that, unlike the receptionist, nothing in this record suggests that a gardener was systematically placed so that no communication could be made to the psychiatrist before the gardener was made aware of its substance.
Because I consider that the communications to both the psychiatrist and the receptionist were privileged, it is unnecessary for me to address in detail the majority’s conclusion that, if the admission of the psychiatrist’s testimony was error, the error would be harmless, because the testimony “was merely cumulative of’ the testimony of the receptionist and other evidence. However, the majority’s secondary reason for finding the error harmless does require some comment. It says:
«* * * Defendant was charged with murder. ORS 163.115. He was convicted of the lesser included offense of Manslaughter In The First Degree. ORS 163.118. Arguably, Saville’s testimony may have helped defendant more than it may have hurt him in that it substantially negated the state’s contention that he had intentionally killed his victim, thus permitting the judge to convict on the lesser included offense.” 67 Or App at 646, n 8. (Emphasis in original.)
The reason defendant sought to have the psychiatrist’s testimony and other evidence suppressed was to avoid being convicted of anything. The psychiatrist’s testimony was strong evidence that defendant was guilty of homicide. Although the standards for determining whether error is prejudicial are varied and have been articulated in various ways, the majority is indeed innovative in concluding that the *656erroneous admission of evidence is harmless to a criminal defendant if it results in nothing worse than his conviction of a lesser included offense.
Joseph, C. J. and Newman, J., join in this dissent.