Many clients expect complete privacy when talking to a doctor, mental health provider, or alcohol counselor and believe those medical records are completely confidential. There is a Psychotherapist-Patient Privilege Statute law in Florida, along with HIPPA, that protects these records, as well as conversations said in meetings or sessions with doctors and counselors, but there are exceptions.
In family law, these issues can become pertinent in child custody cases because two of the issues the judge must decide when developing a parenting plan is (1) the physical and mental health of the parties and (2) the moral fitness of each parent to have custody or timesharing with a child. An exception to the Psychotherapist-Patient Privilege law, is when the Party relies upon his or her mental, emotional or physical condition as an element in the claim or defense of a case. Because the judge must consider the physical and mental health of the parties, the judge may consider privileged communicated after conducting a hearing, but not based solely on an unfounded allegation made by the opposing Party.
Furthermore, where the only allegations of mental unfitness relate to a period remote in time (i.e. five years prior to the date of trial), such staleness may make the information outdated and thus protected through the privilege. Only the Parties’ present abilities and conditions are relevant to the trial court’s determination regarding children’s issues. To use these prior psychological records, the Party asking to use the records has the burden to show that the historical psychological record would contribute to a determination regarding the Party’s present ability and present psychological condition.
It’s important to note that in the case where a social investigator is called as an expert witness, they have authorization to examine medical and mental health records to base their opinion when recommending a parenting plan to the judge.
Example 1: The Wife’s voluntary hospitalization for mental treatment after the filing of the Petition for dissolution of marriage was sufficient to put her mental condition in controversy and make the hospital records regarding communications, diagnosis, and treatment relative to her fitness as a mother useful at trial and thus could be used by the opposing party.
Example 2: The name and contact information for mental health professionals, counselors and doctors is not confidential nor are the dates they saw a patient.
Example 3: Where the Wife’s suicide attempt was deemed by the Husband to place the Wife’s records useful at trial and as an exception to the privilege, the judge must hold a hearing to examine the records sought to be reviewed at trial in an in camera hearing (which means a review outside of the presence of the Parties or their attorneys).