Mental Health Records Aren’t Always Confidential

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Physician-patient privilege is an important right that enables mental health practitioners and their patients to foster an open and honest dialogue, and to keep records that are presumed to be private and protected.

But if you are asked to participate in a child custody hearing–whether as a practitioner or a patient–that changes.

When a person agrees to a custody proceeding, he must understand that his present and prior mental state will be considered, including but not limited to any history of mental health disorders and addiction, which includes information that was previously considered confidential.

It is common to essentially waive physician-patient privilege, because in determining custody, courts must determine what is in the best interest of the child, which means significant transparency for any potential guardian regarding health and mental health matters.

In order to fully understand the family situation, the Court may order a therapist to turn over his/her patient’s most private communications, diagnoses and other sensitive information to the spouse’s counsel and/or the Court.

This information also may be introduced in a Court, in motion papers and even submitted as evidence part of a custody trial. Further, during a psychological or psychiatric evaluation in a custody matter, mental health professionals may be required to turn over all medical records and notes, pursuant to HIPPA forms to the evaluator.

In some instances, courts have ordered an in camera review of several years of a person’s psychiatric records, which is legal parlance for a process in which a judge privately looks at confidential, sensitive, or private information, in this situation, to determine which information is relevant to custody.

In one case, the mother’s medical records indicated that she had been hospitalized 15 times over the course of her decade-long mental illness. The Court concluded that due to her extensive mental health history, she was unable to provide proper and adequate care of her child.

In another custody trial, in which I was lead counsel, a parent was ordered by the Court to disclose every hospital, clinic, and rehabilitation center in which the person sought treatment over a five-year period. All of this “protected” information was entered into evidence at trial to assist the Court in determining custody in the best interest of the child.

If this is happening to you, how can you prepare?

1. A mental health professional must be prepared to hand over all the notes and files that are relevant to the patient in question if asked to do so by the Court.
2. A parent who is being asked to provide this information needs to ensure his attorney is completely apprised of all of the issues that will be revealed so that the legal team can be prepared for questions about the information and issues that come from it.
3. Whatever role you play in this scenario, it is an undoubtedly very difficult time for all parties.