Admissibility of Mental and Physical Health Records and Testimony

• Jurisdiction: Colorado,United States
• Citation: Vol. 29 No. 12 Pg. 61
• Pages: 61
• Publication year: 2000

29 Colo.Law. 61 Colorado Lawyer 2000.

2000, December, Pg. 61. Admissibility of Mental and Physical Health Records and Testimony

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61

Vol. 29, No. 12, Pg. 61

The Colorado Lawyer

December 2000
Vol. 29, No. 12 [Page 61]

Specialty Law Columns
Family Law Newsletter
Admissibility of Mental and Physical Health Records and Testimony
by Christopher L. Hardaway

Situations arise in family law cases where the admissibility of medical or mental health records becomes an issue. In actions concerning the allocation of parental responsibilities, the records of either parent or the child may be requested to determine the best interests of the child, the parent’s ability to parent, or the child’s needs. Concerning spousal maintenance, the advantaged spouse may request access to records once the disadvantaged spouse puts need at issue. Records may be requested in dependency and neglect hearings or in adoptions Modifications of parenting time, decision-making, or maintenance also may raise the issues of access to mental and physical health records and their admissibility

This article addresses both privilege and professional standards of confidentiality. A significant amount of foreign authority exists regarding admissibility in custody situations, but not much regarding maintenance situations This suggests that the issue of admissibility is significantly more unstable and tougher to deal with in custody areas, whereas with spousal maintenance, counsel might well track the holdings in personal injury and tort litigation (that is, when a party places mental or physical health at issue requesting compensation, the party may waive privilege, as set forth in more detail below).

Colorado Rules of Evidence

The Colorado Rules of Evidence provide that no person has a privilege not to testify or not to produce information unless there are constitutional, statutory, or common law exceptions.1 As a general rule, the privileges summarized below provide that a party can refuse to allow his or her medical doctors, psychiatrists, psychologists, and therapists to testify or produce records, unless that party places his or her own medical condition or mental condition at issue.

Privilege

Several privileges recognized in Colorado that impact family law actions include the following.

CRS § 13-90-107(1)(d) provides:

A physician . . . shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. . . .

The psychiatrist comes within the purview of this section,2 and this privilege is personal to the patient.3 In addition, hospital and medical records fall within the scope of the physician-patient privilege.4

CRS § 13-90-107(1)(g) provides:

A licensed psychologist, professional counselor, marriage and family therapist, social worker, or unlicensed psychotherapist shall not be examined without the consent of [the] client as to any communication made by the client . . . or . . . advice given thereon. . . .

CRS § 12-43-218 provides:

A licensee, licensed or certified school psychologist, registrant, or unlicensed psychotherapist shall not disclose without the consent of the client, any confidential communications made by the client or advice given thereon, in the course of professional employment. . . .

An exception exists when these persons are required to report child abuse or neglect pursuant to CRS § 19-3-304. Also, the privilege is abrogated by CRS § 19-3-311, but only with respect to information that is the basis for such a report and not concerning communications relating to ongoing treatment of a victim of such abuse or neglect.5

The U.S. Code, 42 U.S.C. § 290dd-2, provides that patient records relating to substance abuse education, prevention, training, rehabilitation, or research that is conducted, regulated, or directly or indirectly assisted, by any agency of the federal government is confidential, and will be disclosed only with the consent of the patient. An underage patient’s consent is required if he or she had been permitted to self-enroll in such a federal program, but parents who had to consent to treatment are required to consent to disclosure of records as well.6

CRS § 13-90-107(1)(b) prohibits an attorney or legal assistant from being examined without consent of the client as to any communications made by the client to the attorney in the course of the attorney’s professional employment. The attorney-client privilege protects confidential communications between the client and the attorney, as well as confidential communications between the client and the attorney’s agent retained for the purpose of litigation.7 It is now settled that a psychiatrist, retained by counsel to assist in the preparation of a parental rights termination proceeding, is an agent of counsel for purposes of the attorney-client privilege.8 However, when that expert is retained for the express purpose of performing an evaluation that will then be provided to the court, the privilege will not attach, even as to communications between the party and the expert.9

Practical Application In Colorado Law

The purpose of the physician-patient privilege is to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the physician’s disclosure of information imparted by the patient during the course of consultation for purposes of medical treatment.10 The purpose of the psychologist-client privilege is identical to that of the physician-patient privilege.11 Once they attach, these privileges prohibit not only testimonial disclosures in court, but also pretrial discovery of information within the scope of the privilege. The burden of establishing the applicability of the privilege rests with the claimant of the privilege.12

As in the case of other privileges, the physician-patient and psychologist-client privileges may be waived. A waiver, which is really a form of "consent" to disclosure, may be express or implied, and the burden of establishing a waiver is on the party seeking to overcome the claim of privilege. A waiver must be supported by evidence showing that the privilege-holder, by words or conduct, has expressly or impliedly forsaken his or her claim of confidentiality with respect to the information in question.13

To establish an implied waiver, there must be either conduct inconsistent with the assertion of a privilege or a clear, unequivocal, and decisive act by a party manifesting an intent to relinquish the right or privilege.14 When the privilege-holder pleads a physical or mental condition as the basis of a claim or as an affirmative defense, the only reasonable conclusion is that the holder thereby impliedly waives any claim of confidentiality respecting that same condition. The privilege-holder, under these circumstances, has used physical or mental condition as the predicate for some sort of judicial relief, making any legal position as to that condition irreconcilable with a claim of confidentiality.15 In a domestic relations case, a party who bases a spousal maintenance claim on mental or physical disabilities arguably creates an implied waiver of confidentiality.16

"The disclosure of sensitive material to the opposing party could be devastating to the treated spouse, and the court should take care not to make matters worse. . . ."

The Colorado Supreme Court’s most recent analysis tempers this implied waiver by holding that a generic claim for mental suffering damages is not sufficient to trigger the waiver when a party is being treated for a mental health condition unrelated to the underlying claim.17 It is unclear how this distinction would be useful in the spousal maintenance context, as the source of a mental health problem is not usually relevant in a no-fault state.

The case of Bond v. District Court18 warns of the dangers of implied waiver. The public policy consideration is the possible embarrassment and humiliation that would make the situation much worse in an emotionally charged domestic relations action. The privilege encourages and protects the...