|
Jul 11
2011
|
Waiver of the Psychotherapist-Patient PrivilegePosted by Damian Turco in visitation , Turco Legal , psychotherapistpatient privilege , psychotherapist , privilege , parental responsibility , Palm Beach County , Florida case law , Florida , evidence , divorce case law , divorce , dissolution of marriage , case law , 4th DCA |
We Floridians feel it's important to be able to meet with a psychotherapist without the concern that what we discuss will be discussed outside that little room with the comfortable chairs. The privilege exists for the same reason it exists between attorneys and their clients. We want people to be completely honest and forthcoming with their psychotherapists (and attorneys for that matter). If the patient is not forthcoming, how can we expect the psychotherapist to properly provide treatment?
This protection is codified in Chapter 90 of our statutes.
TO SCHEDULE A TIME TO DISCUSS YOUR CASE WITH OUR ATTORNEY(S), CALL OUR OFFICE AT (561)472-0919. CLICK HERE TO COMPLETE A CONTACT FORM.
Under section 90.503, Florida Statutes (2011):
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
This privilege is very strong. So strong that it can almost never be breached. That means there is almost never an opportunity for one party to a family litigation to force the psychotherapist of the other party to spill the beans and testify in open court as to what the patient said. It's a good thing. Without it, nobody with serious issues and children would ever see a psychotherapist.
BUT, it's important to note that I've used the phrase "almost never" multiple times now. That's because there is a narrow exception to the rule and there is specific procedure as to how the analysis is to go. The exception is when there is a "calamitous event" as we are reminded with the recent case of NATALIA G. SMITH, Petitioner, v. GEOFFREY SMITH, Respondent. 4th District. Case No. 4D11-354.
In the Smith case, the 4th DCA reminds us "Only in situations where calamitous events such as an attempted suicide occur during a pending custody dispute have courts found that the mental health of the parent is sufficiently at issue to warrant finding no statutory privilege exists. See Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977)."
And, in fact, in my recent review of the string of cases where the issue of psychotherapist-patient waiver arose, the only events that were cited as calamitous were attempted suicides and murder. The court is and has been careful to not limit calamitous events to these events, but clearly the situation must be extreme for the court to consider such waiver.
Why is this important? Because in MANY, MANY cases, perhaps your case, at least one party believes the behavior of the other is "calamitous." It is in such instances that a party is well assisted by a competent attorney who can properly frame the severity of the situation objectively.
If you are the party seeking the privileged information, fear not. One reason the privilege is so strong here is that the court has another tool to determine whether a party is psychologically able to care for his/her children - it may order a psychological evaluation of the party.
The Smith case further lays out the procedure to determine whether the privilege should be waived and also the properly appellate procedure in the event a party believes the trial court got it wrong.
The court in Smith waived the privilege merely on the proffered testimony of the attorneys. This was error. The DCA found that the party, not her attorney, may put her mental health at issue. AND, when the trial court does get the ruling wrong on a discovery order, the proper method of getting to the DCA review level is by petitioning the DCA for certiorari.
Accordingly, the 4th DCS held as follows:
"We grant certiorari for the trial court to hold an evidentiary hearing in which it will consider whether the wife placed her mental health at issue so as to abrogate her statutory privilege. Should the court find that the wife's privilege was waived, it should first review her mental health records in camera prior to releasing them in their entirety to the husband. If instead the court finds, after evidentiary hearing, that the wife did not sufficiently put her mental health at issue and did not waive her psychotherapist-patient privilege, it should then consider ordering an independent psychological evaluation."
If you are a party seeking the psychological records of the other, be sure it is because the other party's behavior may amount to a calamitous event, that the other party's mental health has been put at issue, and that there are parenting issues relevant to the mental health of the other party. If there is no calamitous event but concerns regarding the other party's mental health exist in relation to that party's ability to parent, motion the court for a psychological evaluation.
REMEMBER THAT CASE LAW CHANGES THE LAW AND, ACCORDINGLY, THE CONTENT OF THIS BLOG MAY BE OUTDATED AND, THEREFORE, THIS ENTRY IS NOT TO BE CONSIDERED LEGAL ADVICE. RATHER, CONSIDER THE CONTENT HEREIN COMMENTARY GIVEN AT THE DATE THIS BLOG ENTRY WAS MADE. FOR A PROPER ANALYSIS OF YOUR CASE, CALL OUR OFFICE TO SET UP A CONSULTATION - (561)472-0919.
This protection is codified in Chapter 90 of our statutes.
TO SCHEDULE A TIME TO DISCUSS YOUR CASE WITH OUR ATTORNEY(S), CALL OUR OFFICE AT (561)472-0919. CLICK HERE TO COMPLETE A CONTACT FORM.
Under section 90.503, Florida Statutes (2011):
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
This privilege is very strong. So strong that it can almost never be breached. That means there is almost never an opportunity for one party to a family litigation to force the psychotherapist of the other party to spill the beans and testify in open court as to what the patient said. It's a good thing. Without it, nobody with serious issues and children would ever see a psychotherapist.
BUT, it's important to note that I've used the phrase "almost never" multiple times now. That's because there is a narrow exception to the rule and there is specific procedure as to how the analysis is to go. The exception is when there is a "calamitous event" as we are reminded with the recent case of NATALIA G. SMITH, Petitioner, v. GEOFFREY SMITH, Respondent. 4th District. Case No. 4D11-354.
In the Smith case, the 4th DCA reminds us "Only in situations where calamitous events such as an attempted suicide occur during a pending custody dispute have courts found that the mental health of the parent is sufficiently at issue to warrant finding no statutory privilege exists. See Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977)."
And, in fact, in my recent review of the string of cases where the issue of psychotherapist-patient waiver arose, the only events that were cited as calamitous were attempted suicides and murder. The court is and has been careful to not limit calamitous events to these events, but clearly the situation must be extreme for the court to consider such waiver.
Why is this important? Because in MANY, MANY cases, perhaps your case, at least one party believes the behavior of the other is "calamitous." It is in such instances that a party is well assisted by a competent attorney who can properly frame the severity of the situation objectively.
If you are the party seeking the privileged information, fear not. One reason the privilege is so strong here is that the court has another tool to determine whether a party is psychologically able to care for his/her children - it may order a psychological evaluation of the party.
The Smith case further lays out the procedure to determine whether the privilege should be waived and also the properly appellate procedure in the event a party believes the trial court got it wrong.
The court in Smith waived the privilege merely on the proffered testimony of the attorneys. This was error. The DCA found that the party, not her attorney, may put her mental health at issue. AND, when the trial court does get the ruling wrong on a discovery order, the proper method of getting to the DCA review level is by petitioning the DCA for certiorari.
Accordingly, the 4th DCS held as follows:
"We grant certiorari for the trial court to hold an evidentiary hearing in which it will consider whether the wife placed her mental health at issue so as to abrogate her statutory privilege. Should the court find that the wife's privilege was waived, it should first review her mental health records in camera prior to releasing them in their entirety to the husband. If instead the court finds, after evidentiary hearing, that the wife did not sufficiently put her mental health at issue and did not waive her psychotherapist-patient privilege, it should then consider ordering an independent psychological evaluation."
If you are a party seeking the psychological records of the other, be sure it is because the other party's behavior may amount to a calamitous event, that the other party's mental health has been put at issue, and that there are parenting issues relevant to the mental health of the other party. If there is no calamitous event but concerns regarding the other party's mental health exist in relation to that party's ability to parent, motion the court for a psychological evaluation.
REMEMBER THAT CASE LAW CHANGES THE LAW AND, ACCORDINGLY, THE CONTENT OF THIS BLOG MAY BE OUTDATED AND, THEREFORE, THIS ENTRY IS NOT TO BE CONSIDERED LEGAL ADVICE. RATHER, CONSIDER THE CONTENT HEREIN COMMENTARY GIVEN AT THE DATE THIS BLOG ENTRY WAS MADE. FOR A PROPER ANALYSIS OF YOUR CASE, CALL OUR OFFICE TO SET UP A CONSULTATION - (561)472-0919.