Florida's psychotherapist-patient privilege in family court.

• Author: Borkosky, Bruce G.

Divorce litigation is widespread in Florida (1) and often involves mental health professionals (MHPs). Many MHP licensing (2) and ethics (3) complaints can result because the litigation can be both complex and emotionally charged. One area of particular challenge (4) is when MHPs are faced with a request for records or a subpoena. (5) Problems may occur if the MHP discloses private information without consent, refuses to disclose information when it is required, or obtains consent from the wrong "patient." It is common practice for child custody evaluators to automatically request therapy records, but all involved may not fully understand the potentially negative consequences of records release. (6) Compounding these issues, patients may have various motivations for seeking treatment (7) and judges may not be entirely familiar with the potential ramifications of the release of privileged and confidential records in part because privilege laws vary considerably from state to state and are highly dependent on case law. (8) Professionals armed with accurate information about this area of the law can assist the courts, while protecting the rights of litigant- and child-patients.

Differences Between Confidentiality and Privilege

Disclosures of mental health records to the legal system are easily confused with disclosures to other parties because they have overlapping, but distinct, rules for disclosure. (9) HIPAA does not apply to matters of privilege. (10) Privilege requests are, instead, governed by F.S. [section]90.503, regulating professions, and case law. A full definition of privilege is beyond the scope of this article, (11) but the general rule of law is "everyone testifies," whether via submittal of records or in-person testimony. Some persons are permitted not to testify --a privilege--because legislatures have decided that some relationships are important to protect. Privilege is, thus, a partial derogation of the law. Privileges, however, are not absolute. Legislatures have enacted exceptions to privilege, and some circumstances void the privilege--a waiver. If either an exception or a waiver applies, it means that testimony is required.

Determining Whether Privilege Applies

The courts should follow (12) strict construction of the statute when determining whether the elements of a privilege claim are met. (13) There is a presumption of no privilege unless all of the following conditions are met: (14)

1) Was the professional a psychotherapist? (15)

2) Was the client a patient? (16)

3) Is the information requested privileged? (17)

4) Does the person asserting privilege have standing to do so? (18)

Exceptions

Once privilege is established, the next analysis is to determine whether any exceptions to privilege apply. (19) The Florida statutes have four exceptions: 1) communications involving the known or alleged perpetrator of known or suspected child abuse; (20) 2) Baker Act proceedings; 3) subsequent to court-ordered evaluations; and 4) when the patient relies on his or her condition as an element of the patient's claim or defense.

F.S. [section]39.204 provides that, in cases of child abuse, the psychotherapist-patient privilege should not operate as a shield to hide evidence of abuse. This is consistent with the statutory requirement to breach confidentiality --termed "abrogation"--by mandated reporting of child abuse. (21) The abrogation statute specifies that reporting of child abuse trumps both confidentiality and privilege. Abrogation applies to all types of proceedings, not merely charges of child abuse. (22) However, this exception to privilege is limited only to that information relevant to the abuse itself. (23)

Determining Whether Privilege, Once Applied, Is Waived

With privilege comes a prima facie case for protection. (24) The party requesting records must then prove that privilege is waived; state laws vary widely in this area. (25) Florida uses a balancing test to determine whether privilege should be pierced. (26) The court must balance the privacy rights of the patient with other considerations, including societal interests, the government's police powers, the best interests of the child, the court's need for information, etc.

Generally, the prior mental health of the parents is rarely relevant or material to a child custody case. The primary legal issue in custody cases is the child's best interest, so even the parent's present circumstances may be only tangentially relevant. (27) Seeking custody does not make a parent's mental condition an element of his or her defense. (28) Allegations of a parent's mental or emotional instability are insufficient to place the parent's mental health at issue, (29) as are when a parent denies such allegations. (30) Instead, the piercing of privilege in family court requires a calamitous event--one that has a direct bearing on current parental fitness--and when probative evidence cannot be obtained via other means. (31)

Research literature suggests consideration of the weight and independence of the evidence, treatment type, recency of treatment, seriousness of the psychological disorder, relevancy of communications made in the course of treatment, availability of the evidence elsewhere, and whether court-ordered evaluations are an adequate substitute for disclosure. (32)

* Examples When Privilege Is Not Waived--Case law provides a few examples when courts have found no waiver. Privilege remains when there is another person in the room--as in couples or family counseling. (33) Mere allegations made by a parent's attorney do not pierce because courts "reject the use of unsworn assertions made by attorneys as evidence." (34) Prior substance abuse problems and treatment are insufficient. (35) There is no waiver for prior unfounded allegations of child abuse and when there is no ongoing issue of abuse. (36) The filing of a disability claim or releasing records to a disability insurance company does not waive privilege. (37) Finally, sending a client to a therapist as part of trial preparation protects work product/attorney-client privilege. (38)

* Examples When Privilege Is Waived --Failure to timely assert privilege will waive privilege, (39) as will a litigant eliciting privileged information from his or her own therapist. (40) Privilege can be voided when a spouse relies on a mental condition for a claim or defense, such as by alleging that he or she was too emotionally distraught to enter into a settlement agreement. (41) There is no privilege when there is no expectation of privacy, such as court-ordered counseling. (42) Privilege is waived if the information sought relates directly to the well-being of the child or to the parent's ability to adequately care for the child, and the child may be in danger. (43) Voluntary admission to an inpatient facility can waive privilege (44) as when a calamitous event has occurred, such as an attempted suicide. (45) A court is not required to wait until a calamitous event becomes a tragedy in order to find a privilege waiver. (46) The "totality of circumstances" can operate as a waiver to privilege. (47) A mental health professional can be required to testify to the danger posed by a patient, which necessarily waives privilege. (48)

The "Mature Minor" Privilege

A child's right to assert privilege depends on widely varying state laws. (49) The Florida Constitution may create a greater child privacy right than the U.S. Constitution. (50) However, the statutes are silent on this issue and the only guidance is provided by case law.

Beginning in 2001, the Fourth District Court of Appeal decided a number of cases...