Vol. 6, No. 3, Pg. 28. Head Games: Obtaining Mental Health Records Without Losing Your Sanity.

• Author: By Kelley M. Braithwaite

South Carolina Lawyer

1994.

Vol. 6, No. 3, Pg. 28.

Head Games: Obtaining Mental Health Records Without Losing Your Sanity

28Head Games: Obtaining Mental Health Records Without Losing Your SanityBy Kelley M. BraithwaiteIn most civil actions containing allegations of emotional injury, evidence of a party's mental health both before and after the pivotal event will be an integral element of proof for the plaintiff, as well as an important impeachment tool for the defense. A party's mental health is often an important issue in claims for serious personal injury, workers' compensation, wrongful death, loss of consortium and intentional infliction of emotional distress. A party's current level of psychological functioning, as well as past psychiatric illnesses, will often be at issue in civil actions involving competency, custody and divorce, to name a few. Mental health status may become collaterally important where state of mind is at issue, as the example in actions involving consent, coercion, undue influence, ability to contract and claims of recklessness and intent.

Because of the subjectivity on which psychiatric diagnosis is based, and because the mental health field is not an exact science, this type of evidence actually lends itself quite well to manipulative interpretation by either side to a dispute. For this reason, mental health records and testimony can be in high demand when the issues in a particular case merit close scrutiny of either party's psychological condition before, during or after the pivotal event.

Despite the South Carolina legislature's recent attempts throughout Chapter 44 of the South Carolina Code to simplify the privileges attaching to mental health information and the methods of obtaining this information, many lawyers and paralegals may be unfamiliar with the new provisions. In addition, the procedures set forth are not particularly user-friendly. There is no bright line rule as to what information is obtainable or by what means. The various provisions are not organized consistently in the Code either by type of provider, type of illness or type of information sought. Several of the provisions overlap, and it is at times difficult to determine which rule to apply. Furthermore, the provisions are difficult to locate in the Index to the Code. Once found, the statutes can be frustrating to read because the terms from one section to another are not consistently defined. As a result, the statutory scheme may be underutilized.

This article is intended to provide practitioners with a basic guide to the various South Carolina Code sections that may be applicable to a quest for mental health records. The practitioner should consult the various provisions cited for a more detailed understanding of the procedures involved. It is also important to note that treatment programs that are, even in part, federally funded, may be subject to specific federal disclosure provisions that are outside the scope of this article.

Methods of obtaining mental health records vary significantlyaccording to type of practitioner, type of condition and whether the provider is a state employee or a private practitioner.

Private Practitioners in General

Private mental health care providers fall broadly into two categories: those with and those without a medical degree. The primary difference between medical doctors and other licensed health care practitioners is the authority of medical practitioners to prescribe medication. Psychiatrists, by far the most prevalent mental health care practitioners with a medical degree, can prescribe psychotropic medication while nonmedical practitioners such as psychologists, counselors, therapists and social workers cannot. Private mental health care providers fall broadly into two categories: those with and those without a medical degree.

Psychiatrists. South Carolina has no specific statute governing the release of private psychiatric records. Therefore, discovery of these records must be governed by the standards for discovery of medical records in general. Despite the recognition of numerous other privileges, South Carolina does not recognize a physician/patient privilege, either by statute or common law, so psychiatric and other medical records are simply not privileged. This is not to say, however, that 29these records are freely available.

South Carolina Code § 44-15-40 governs the release of medical...