2012 Summer, Pg. 38. PROTECTING A DOMESTIC ABUSE VICTIM'S PRIVILEGED COUNSELING COMMUNICATIONS IN FAMILY LAW CASES.

AuthorBy Attorneys Mary Krueger and Dennis Labbe

New Hampshire Bar Journal

2012.

2012 Summer, Pg. 38.

PROTECTING A DOMESTIC ABUSE VICTIM'S PRIVILEGED COUNSELING COMMUNICATIONS IN FAMILY LAW CASES

New Hampshire State Bar JournalVolume 53, No. 2Summer 2012PROTECTING A DOMESTIC ABUSE VICTIM'S PRIVILEGED COUNSELING COMMUNICATIONS IN FAMILY LAW CASESBy Attorneys Mary Krueger and Dennis LabbeThe New Hampshire Supreme Court has not yet had the opportunity to address the issue of whether and when a family law litigant must disclose confdential information about counseling or other mental health treatment. However, as many family law practitioners know, in contested divorce or parenting cases when children are involved, requests to access this information are common.

Family law attorneys need to be careful in handling these discovery requests, especially when clients are victims of domestic or sexual abuse or stalking. Disclosure of such records in these cases can compromise client safety, impede a client's ability to emotionally heal from trauma and perpetuate continued abuse through the legal process.

The New Hampshire Supreme Court articulated a protective policy towards counseling records specifcally in In re Berg.(fn1) There it found, "the value of the therapist-patient relationship and of the patient's privacy is intertwined with one of the most important concerns of the courts-the safety and well-being of the children and families."(fn2) Protecting these records from disclosure helps foster productive relationships between clients and their therapists.(fn3) Even the threat of disclosure could interfere with therapy as clients cannot trust that the information will be kept confdential and may hold back in the counseling sessions.(fn4) The Berg Court seems to suggest that the public policy behind the mental health privilege may be even more compelling than the policies behind both the attorney-client and the physician-patient privileges.(fn5)

In addition to the harm which could result from even the threat of disclosure, releasing records can lead to humiliation and embarassment. Notes of private therapeutic conversations can be misused and taken out of context in hotly contested divorces.

This article analyzes current New Hampshire law and suggests how to best protect a domestic abuse victim's privileged counseling information. We recommend a highly protective approach when abusers seek to access a victim's privileged mental health records in family law cases.

PRESERVING THE PRIVILEGE AND PREVENTING WAIVER

The foundational blocks for invoking privilege are found in court rules and the New Hampshire statutes. Both superior court and family division discovery rules limit discovery to information "not privileged, which is relevant to the subject matter involved in the pending action..."(fn6) New Hampshire Rules of Evidence defne privilege to include "confdential relations and communications between a psychologist or pastoral counselor... and his or her client."(fn7) The Rules of Evidence place this privilege "on the same basis as those provided by law between attorney and client" and refers specifcally to the mental health privilege statute, RSA 330-A.(fn8) Additionally New Hampshire's Domestic Violence law prevents disclosure of communications between domestic and sexual violence counselors (commonly known as crisis center advocates) and their clients, indicating a policy toward protecting these specifc kinds of communications.(fn9)

In the frst instance, a party should invoke the mental health privilege (as well as any other applicable privilege) in order to prevent possible waiver.(fn10) And a person who "knowingly or voluntarily discloses or consents to disclosure for any signifcant part of the privileged matter" will have arguably waived it.(fn11) Otherwise known as express waiver, if your client testifes about the privileged information, the client could be deemed to have "opened the door" and it may be diffcult to close it.(fn12) Clients need to be educated about how what they say in court could lead to an express waiver Assuming express waiver has not occurred, the analysis does not stop here.

PREVENTING WAIVER: NEXT STEPS TO PROTECTING PRIVILEGED INFORMATION

The leading New Hampshire case to provide guidance on how to protect privileged mental health information is Desclos v. Southern New Hampshire Medical Center .(fn13) Desclosis amedical negligence case where plaintiff claimed damages including pain and suffering, loss of earning capacity and loss of enjoyment of life. Defendants in that case asked plaintiff to produce certain confdential psychiatric and psychological records. Plaintiff claimed those records were privileged and when the trial court disagreed, an interlocutory appeal ensued. Properly viewed, we suggest that i)eycte identifies the minimum safeguards for how a domestic violence survivor's privileged mental health information should be treated in the context of a family law case.

The Desclos Court first decided that the trial court had improperly applied a relevance standard to the disclosure issue.(fn14) It outlined "two means by which disclosure of privileged information may occur: (1) the court finds a waiver of the privilege;(fn15) or (2) the court orders a piercing of the privilege."(fn16) Desclos examined whether the plaintiff had waived her psychotherapist-patient privilege when she put her emotional condition "at issue" by virtue of her specific damages claims.(fn17)

IMPLIED WAIVER

To find implied waiver, a court must determine first whether a litigant has placed his or her privileged information at issue in the case. The information will be considered at issue if the litigant has "injected the privileged material into the case such that the information is actually required for resolution of the issue."'(fn18) If the answer is "yes," the litigant "must either waive the privilege as to that information" or be prevented from using the privileged information to establish the elements of the case.'(fn19) The Desclos Court looked at other jurisdictions to evaluate whether the plaintiff, whose damages claims included certain mental suffering, had placed her mental status at issue.

In so doing, it adopted the Missouri Supreme Court's analysis of a sexual harassment/discrimination case where that plaintiff claimed damages for emotional distress, humiliation, inconvenience and loss of enjoyment of life.(fn20) In Cunningham, the Missouri Supreme Court held that plaintiff did not place her mental status at issue because she claimed generic mental suffering and damages resulting from various incidents described in her suit.(fn21) The Missouri Supreme Court found that generic mental suffering is the kind of suffering that can be inferred from the circumstances without the need for expert testimony or evidence of a mental health diagnosis.(fn22) The court cautioned that if a plaintiff brings in evidence of medical or psychological treatment to support her damage claims, she would waive the privilege, because she would have put her mental state at issue in the case.(fn23)

Like the Cunningham court, the Descbs Court differentiated between what it called "generic mental suffering" and the kind of suffering defined by a medically diagnosed mental condition.(fn24) It defined "generic mental suffering" as the mental suffering that is in the common experience of jurors, does not depend upon expert evidence, and does not exceed the kind of mental suffering that an ordinary person would experience in similar circumstances.(fn25) It concluded that if a cause of action for a physical injury involves a claim of "generic mental suffering" then the petitioner's privileged mental health information will not be required for the resolution of the issue.'(fn26)

However, the Court found that if the trial court determines that plaintiff's claims involve a clinically diagnosed disorder, such as depression or post-traumatic stress disorder or require expert testimony or other expert evidence regarding her "mental suffering," the psychotherapist-patient privilege is waived.(fn27) In such a case, the waiver is only to those therapeutic records "necessary to resolve [plaintiff's] claims, which may require in camera review"(fn28)

DO ALLEGATIONS OF DOMESTIC VIOLENCE PLACE A VICTIM'S MENTAL STATUS AT...

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