Section 12.9 Nonrecognition of Privileged Communications

• Library: Family Law Deskbook and 2014 Supp

F. (§12.9) Nonrecognition of Privileged Communications

An important statutory provision with respect to domestic cases involving allegations of child abuse and neglect is § 210.140, RSMo Supp. 2011. This statute provides that “[a]ny legally recognized privileged communication, except that between attorney and client or involving communications made to a minister or clergyperson, shall not apply to situations involving known or suspected child abuse or neglect . . . .” The reference in the statute to “legally recognized” means privileged. Thus, individuals cannot assert privileges to avoid the duty to report, to refuse to assist in an investigation by the CD regarding these allegations, or to conceal relevant evidence.

In Roth v. Roth, 793 S.W.2d 590 (Mo. App. E.D. 1990), the court examined this statute and concluded that it applied to domestic proceedings involving known or suspected child abuse or neglect. In Roth, the husband sought the wife’s medical records from her treatment at Hyland Center for alcoholism, and the wife asserted her physician-patient privilege to avoid the discovery of these records. The court found that § 210.140 prevented the wife from invoking this privilege in the proceeding. The court based its rationale on its examination of the history of § 452.375, now RSMo Supp. 2011, requiring the court to consider mental and physical health of all individuals, including any history of abuse, and the court’s duty to discover all evidence in these cases pertaining to the best interests of the child. Counsel and the client in domestic proceedings involving allegations of abuse and neglect, therefore, should be aware that opposing counsel may have the right to discovery of the client’s medical and treatment records.

In its analysis of Roth...