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The Florida Bar
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The Florida Bar Journal
May, 2013 Volume 87, No. 5
Florida’s Psychotherapist-Patient Privilege in Family Court

by Bruce G. Borkosky and Mark S. Thomas

Page 35

Divorce litigation is widespread in Florida1 and often involves mental health professionals (MHPs). Many MHP licensing2 and ethics3 complaints can result because the litigation can be both complex and emotionally charged. One area of particular challenge4 is when MHPs are faced with a request for records or a subpoena.5 Problems may occur if the MHP discloses private information without consent, refuses to disclose information when it is required, or obtains consent from the wrong “patient.” It is common practice for child custody evaluators to automatically request therapy records, but all involved may not fully understand the potentially negative consequences of records release.6 Compounding these issues, patients may have various motivations for seeking treatment7 and judges may not be entirely familiar with the potential ramifications of the release of privileged and confidential records in part because privilege laws vary considerably from state to state and are highly dependent on case law.8 Professionals armed with accurate information about this area of the law can assist the courts, while protecting the rights of litigant- and child-patients.

Differences Between Confidentiality and Privilege
Disclosures of mental health records to the legal system are easily confused with disclosures to other parties because they have overlapping, but distinct, rules for disclosure.9 HIPAA does not apply to matters of privilege.10 Privilege requests are, instead, governed by F.S. §90.503, regulating professions, and case law. A full definition of privilege is beyond the scope of this article,11 but the general rule of law is “everyone testifies,” whether via submittal of records or in-person testimony. Some persons are permitted not to testify — a privilege — because legislatures have decided that some relationships are important to protect. Privilege is, thus, a partial derogation of the law. Privileges, however, are not absolute. Legislatures have enacted exceptions to privilege, and some circumstances void the privilege — a waiver. If either an exception or a waiver applies, it means that testimony is required.

Determining Whether Privilege Applies
The courts should follow12 strict construction of the statute when determining whether the elements of a privilege claim are met.13 There is a presumption of no privilege unless all of the following conditions are met:14

1) Was the professional a psychotherapist?15

2) Was the client a patient?16

3) Is the information requested privileged?17

4) Does the person asserting privilege have standing to do so?18

Exceptions
Once privilege is established, the next analysis is to determine whether any exceptions to privilege apply.19 The Florida statutes have four exceptions: 1) communications involving the known or alleged perpetrator of known or suspected child abuse;20 2) Baker Act proceedings; 3) subsequent to court-ordered evaluations; and 4) when the patient relies on his or her condition as an element of the patient’s claim or defense.

F.S. §39.204 provides that, in cases of child abuse, the psychotherapist-patient privilege should not operate as a shield to hide evidence of abuse. This is consistent with the statutory requirement to breach confidentiality — termed “abrogation” — by mandated reporting of child abuse.21 The abrogation statute specifies that reporting of child abuse trumps both confidentiality and privilege. Abrogation applies to all types of proceedings, not merely charges of child abuse.22 However, this exception to privilege is limited only to that information relevant to the abuse itself.23

Determining Whether Privilege, Once Applied, Is Waived
With privilege comes a prima facie case for protection.24 The party requesting records must then prove that privilege is waived; state laws vary widely in this area.25 Florida uses a balancing test to determine whether privilege should be pierced.26 The court must balance the privacy rights of the patient with other considerations, including societal interests, the government’s police powers, the best interests of the child, the court’s need for information, etc.

Generally, the prior mental health of the parents is rarely relevant or material to a child custody case. The primary legal issue in custody cases is the child’s best interest, so even the parent’s present circumstances may be only tangentially relevant.27 Seeking custody does not make a parent’s mental condition an element of his or her defense.28 Allegations of a parent’s mental or emotional instability are insufficient to place the parent’s mental health at issue,29 as are when a parent denies such allegations.30 Instead, the piercing of privilege in family court requires a calamitous event — one that has a direct bearing on current parental fitness — and when probative evidence cannot be obtained via other means.31

Research literature suggests consideration of the weight and independence of the evidence, treatment type, recency of treatment, seriousness of the psychological disorder, relevancy of communications made in the course of treatment, availability of the evidence elsewhere, and whether court-ordered evaluations are an adequate substitute for disclosure.32

Examples When Privilege Is Not Waived Case law provides a few examples when courts have found no waiver. Privilege remains when there is another person in the room — as in couples or family counseling.33 Mere allegations made by a parent’s attorney do not pierce because courts “reject the use of unsworn assertions made by attorneys as evidence.”34 Prior substance abuse problems and treatment are insufficient.35 There is no waiver for prior unfounded allegations of child abuse and when there is no ongoing issue of abuse.36 The filing of a disability claim or releasing records to a disability insurance company does not waive privilege.37 Finally, sending a client to a therapist as part of trial preparation protects work product/attorney-client privilege.38

Examples When Privilege Is Waived Failure to timely assert privilege will waive privilege,39 as will a litigant eliciting privileged information from his or her own therapist.40 Privilege can be voided when a spouse relies on a mental condition for a claim or defense, such as by alleging that he or she was too emotionally distraught to enter into a settlement agreement.41 There is no privilege when there is no expectation of privacy, such as court-ordered counseling.42 Privilege is waived if the information sought relates directly to the well-being of the child or to the parent’s ability to adequately care for the child, and the child may be in danger.43 Voluntary admission to an inpatient facility can waive privilege44 as when a calamitous event has occurred, such as an attempted suicide.45 A court is not required to wait until a calamitous event becomes a tragedy in order to find a privilege waiver.46 The “totality of circumstances” can operate as a waiver to privilege.47 A mental health professional can be required to testify to the danger posed by a patient, which necessarily waives privilege.48

The “Mature Minor” Privilege
A child’s right to assert privilege depends on widely varying state laws.49 The Florida Constitution may create a greater child privacy right than the U.S. Constitution.50 However, the statutes are silent on this issue and the only guidance is provided by case law.

Beginning in 2001, the Fourth District Court of Appeal decided a number of cases that created a “mature minor” privilege.51 In Atty. Ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301 (Fla. 4th DCA 2001), the court upheld a minor’s independent privacy right over the state’s, her parents’, and the evaluator’s interests.52 The court opined that :

The parents both assert that they can waive this claim for their child. In the instant case, it is questionable whether either or both parents are acting solely on their daughter’s behalf in attempting to waive the privilege and obtain the records of confidential communications, when each has his or her own interests at stake in this lawsuit.53

The court likewise extended a teen’s privacy right54 over the interests of the Department of Children and Families (DCF) and the Guardian ad Litem (GAL) Program,55 requiring a due process hearing, an in camera review, and release of only minimum necessary records. Further, parents may not have standing to assert or waive the “mature minor’s” privilege.56 The GAL program’s policy presumes that teens 14 years and older have sufficiently mature capacity to consent, but unilaterally decides whether children under 14 have capacity.57

These cases may not necessarily assist the court in determining whether a particular minor is due an independent privilege right. There is no singular answer, but case law and the literature consider several factors.58 An oft-cited, non-Florida case, In re Berg, 886 A.2d 980 (N.H. 2005), advised consideration of the child’s age, intelligence, and maturity; the child’s intensity of preference; and the existence of undesirable or improper influences. The literature suggests consideration of the child’s needs, desire, cognitive capacity, and perception of fairness, as well as parental concerns, the particular presenting problem, state statutes, the effect on the therapy, and respect for the minor’s constitutional rights.59

Alternatives to Waiving Privilege
Courts have several tools available to avoid wholesale waiver of a patient’s privilege, including court-ordered evaluations, in camera record review, partial or limited release, and protective orders. An independent psychological evaluation may be ordered,60 but the parent’s mental condition must be in controversy and good cause must be shown.61 Should the court find that privilege is waived, it should review the records in camera and release only probative records,62 but the use of records should be limited.63 Courts may enter protective orders to impose sanctions should one of the parties make the mental health information public.64

However, there are potential limitations with the use of these alternatives.65 Evaluations may not address the pertinent information. Treatment records, generated prior to litigation, may be more probative; parents in evaluations may have an incentive to present themselves in the most positive light; and the evaluator may access the privileged records regardless. The presiding judge may conduct the in camera review, making it difficult for the judge to remove the undisclosed or irrelevant information from consideration. Even an impartial judge may be limited in that the records are, by necessity, reviewed without context or explanation, possibly prejudicing the client. Even if only a portion of the records are released, any disclosure has the potential of contaminating current or future therapeutic relationships for that patient, and causing that patient embarrassment if the records are made public by the opposing party.

Recommendations
For Therapists Faced with a Request for Records Mental health professionals may, when dealing with requests for information:

1) Discuss with patients, “the relevant limits of confidentiality and the foreseeable uses of the information….”66

2) If there is a conflict between ethics and law, “clarify the nature of the conflict, make known your commitment to the Ethics Code and take reasonable steps to resolve the conflict….”67

3) Notify the court that the information requested is confidential and may be privileged68 and seek guidance from court (e.g., alternatives to waiver).

4) Provide “only information germane to the purpose for which the communication is made”69 and do not opine on the issue before the court, such as child custody arrangements.70

For Child Custody/Family Evaluators Child custody/family evaluators may consider not seeking a copy of therapy records or interviewing the therapist;71 or, the evaluation may have been ordered in lieu of piercing privilege. Once the evaluator obtains the therapist’s records, both parents can obtain a copy of the records.72 Even with a protective order, there is no guarantee that the information can remain private. The contents can be inadvertently disclosed during the testimony of any party. Seeking the privileged information may place the evaluator in an untenable position — either the evaluator refuses to acknowledge that one basis for the opinion was the therapy records; or the evaluator acknowledges reliance on the therapy records and breach privilege; or the evaluator acknowledges reliance on the therapy records, but keeps the basis for the opinion “secret.”73

For Attorneys and Judges Legal professionals may consider:

1) The apparent state policy is to avoid waiving privilege unless some extreme event occurs, such as a suicide attempt or when the children are in danger.

2) Orders for mental health evaluations may explicitly state that therapy records/information are privileged and not to be disclosed.

3) If the information cannot be obtained by any other means, have a separate judge perform a due process hearing and in camera review, a limited disclosure of necessary records, and an appropriate protective order.

Conclusion
Due to the sensitive issues involved in family law litigation, the area is ripe for ethical issues for legal and mental health professionals alike. When equipped with accurate information regarding psychotherapist-client confidentiality and privilege, mental health professionals and attorneys can avoid potential ethical pitfalls while simultaneously assisting the courts in their administration of justice and protecting litigant- and child-patient rights.


1 Fla. Dep’t of Health, Florida Vital Statistics Annual Report 2011: Marriages and Dissolutions of Marriages [hereinafter Fla. Dep’t of Health, Fla. Vital Statistics 2011]. There were about 85,000 divorces in 2011. The rate of divorce in Florida is higher than the national average, about 4.5 per thousand population. Ten percent of divorces involve litigation. S.P. Herman & W. Bernet, Practice Parameters for Child Custody Evaluation, 36 J. Am. Acad. Child & Adolescent Psychiatry 57S (Oct. 1997). Sixty percent of those involve children, resulting in about 5,000 custody cases annually. Fla. Dep’t of Health, Fla. Vital Statistics 2011.

2 Between 2004 and 2011, in Florida, there were 3,183 complaints; about 100 were founded, and about 40 percent of founded violations related to privilege. See Christina Peterson, Common Problem Areas and Their Causes Resulting in Disciplinary Actions, Professional Conduct and Discipline in Psychology 71 (1996); Nancy W. Olesen & Leslie M. Drozd, Prudent Therapy in High Conflict Cases: With and Without Allegations of Intimate Partner Violence or Child Abuse, 9 J. Child Custody 69, 73 (2012); Lyn R. Greenberg et al., Ethical Issues in Child Custody and Dependency Cases: Enduring Principles and Emerging Challenges, 1 J. Child Custody 7, 9 (2004).

3 Elizabeth M. Ellis, Ethical Problems and Pitfalls, Divorce Wars: Interventions with Families in Conflict 295-319 (2000).

4 Clifton W. Mitchell, J. Graham Disque & Patricia Robertson, When Parents Want to Know: Responding to Parental Demands for Confidential Information, 6 Prof. School Counseling 156-161 (Dec. 2002) [hereinafter Mitchell, When Parents Want to Know 2002].

5 Am. Psy. Ass’n Comm. Legal Issues, Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client Records or Test Data, 37 Prof. Psychol.: Research & Prac. 215-222 (Apr. 2006), available at http://www.apa.org/about/offices/ogc/private-practitioners.pdf.

6 Three quarters of custody case litigants rescinded their psychotherapist records request after review of potential consequences. L. Kevin Hamberger, Requests for Complete Record Release: A Three-step Response Protocol, 37 Psychotherapy: Theory, Research, Prac., Training 89-97 (2000).

7 Elizabeth M. Ellis, Should a Psychotherapist Be Compelled to Release an Adolescent’s Treatment Records to a Parent in a Contested Custody Case?, 40 Prof. Psychol.: Research & Prac. 557-563 (Dec. 2009) [hereinafter Ellis, Psychotherapist 2009]; Denis K. Lane, Jr., Limitations on Testimony by Mental Health Clinicians in Domestic Actions: Practical and Ethical Considerations, http://www.centerforethicalstudies.com/notes_and_info/colo-lawyer-testimony.pdf; Carlton D. Stansbury, Accessibility to a Parent’s Psychotherapy Records in Custody Disputes: How Can the Competing Interests Be Balanced?, 28 Behavioral Sciences & L. 522-541 (July/Aug. 2010) [hereinafter Stansbury, Accessibility 2010]; Cynthia A. Reynolds, Kelly Duncan & Rita Sommers-Flanagan, “Please Don’t Tell!”: Custody Battles and Confidentiality, Critical Incidents in Counseling Children 197-204 (2007).

8 Marcia M. Boumil, Debbie F. Freitas & Cristina F. Freitas, Waiver of the Psychotherapist-Patient Privilege: Implications for Child Custody Litigation, 22 Health Matrix 1-31 (2012) [hereinafter Boumil, Waiver 2012].

9 Ellis, Psychotherapist 2009; Elizabeth M. Ellis, Should Participation in a Child Custody Evaluation Compel the Release of Psychotherapy Records?, 7 J. Child Custody 138-154 (Apr. 2010) [hereinafter Ellis, Child Custody 2010]; see also Fla. Stat. §§490.0147 & 491.0147 (2012).

10 45 CFR §§164.512(a) & 164.512(e)(i) (2012). Disclosures required by law and court orders do not require a written authorization from the patient. Evenson v. Hartford Life & Annuity Ins. Co., 244 F.R.D. 666, 668 (M.D. Fla. 2007).

11 Guerrier v. State, 811 So. 2d 852, 854 (Fla. 5th DCA 2002); Atty. Ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301, 305 (Fla. 4th DCA 2001); Deborah Paruch, The Psychotherapist-Patient Privilege in the Family Court: An Exemplar of Disharmony Between Social Policy Goals, Professional Ethics, and the Current State of the Law, 29 N. Ill. U. L. Rev. 499, 500 (2008); Stansbury, Accessibility 2010; Courtney Waits, The Use of Mental Health Records in Child Custody Proceedings, 17 J. Am. Acad. Matrimonial L. 159-161 (2001) [hereinafter Waits, Mental Health Records 2001]; Boumil, Waiver 2012.

12 Stansbury, Accessibility 2010.

13 National Legal Research Group, Inc., Discovery of a Party’s Mental Health Records in Child Custody Matters (1995), http://www.divorcesource.com/research/dl/discovery/95oct219.shtml (stating “if the legislature of a particular jurisdiction has not enacted a privilege, the privilege simply does not exist”) [hereinafter National Legal, Discovery 1995].

14 Presumably, the burden is on the patient to establish that privilege applies. The authors know of no case law on the matter, so it is likely that the preponderance of the evidence burden applies here, as it does with other privileges in Florida. See Eight Hundred, Inc. v. Fla. Dep’t of Rev., 837 So. 2d 574, 576 (Fla. 1st DCA 2003) (discussing accountant-client privilege); see also O’Neill v. O’Neill, 823 So. 2d 837, 839-40 (Fla. 5th DCA 2002) (strictly construing the statute establishing psychotherapist-patient privilege); and Guerrier v. State, 811 So. 2d at 854 (stating evidentiary privileges are generally disfavored, particularly those unknown at common law, therefore, they are strictly construed to limit their application).

15 Fla. Stat. §90.503(1)(a) (2012). Privilege may not apply if the professional was working as a teacher or coach at the time.

16 Fla. Stat. §90.503(1)(b) (2012). Privilege may not apply if someone else was officially the patient, as during family therapy. See, e.g., Estape v. Scherer, 67 So. 3d 428 (Fla. 4th DCA 2011).

17 Fla. Stat. §90.503(2) (2012). Privilege may not apply if the information requested is outside of the statutory definition, such as for medical records, Oswald v. Diamond, 576 So. 2d 909, 910 (Fla. 1st DCA 1991) (stating there is no statutory restriction of relevant medical records “other than those made for the purpose of diagnosis or treatment of a mental or emotional condition”); or medical professionals’ contact information, Wilder v. Wilder, 993 So. 2d 182 (Fla. 2d DCA 2008).

18 Fla. Stat. §90.503(3) (2012). Persons who have standing to assert privilege include the patient, psychotherapist, attorney, guardian, conservator, or personal representative. Case law is somewhat contradictory in this area. Although parents may have no standing to assert or waive privilege when their interests conflict with the minor’s, Atty. Ad Litem for D.K., 780 So. 2d at 308, the appointment of a guardian ad litem is not required when the conflict arises, Baron v. Baron, 941 So. 2d 1233, 1237 (Fla. 2d DCA 2006). Instead, both Baron and Hughes v. Schatzberg, 872 So. 2d 996, 998 (Fla. 4th DCA 2004), appear to make the guardian ad litem and/or therapist responsible for asserting privilege. C.f. Wray v. Dep’t Prof. Reg., 410 So. 2d 960 (Fla. 1st DCA 1982) (holding the privilege inures to the patient, therefore, it can only be waived by the patient or someone acting directly on the patient’s behalf).

19 Some states have statutory exceptions in child custody disputes. Boumil, Waiver 2012. Florida does not.

20 Fla. Stat. §39.204 (2012).

21 Fla. Stat. §39.201 (2012).

22 State v. Jett, 626 So. 2d 691, 693 (Fla. 1993).

23 Doherty v. Doe, 957 So. 2d 1267, 1269 (Fla. 4th DCA 2007); Carson v. Jackson 466 So. 2d 1188, 1190-91 (Fla. 4th DCA 1985); Hill v. State, 846 So. 2d 1208, 1214 (Fla. 5th DCA 2003).

24 Stansbury, Accessibility 2010.

25 Boumil, Waiver 2012; National Legal, Discovery 1995; Waits, Mental Health Records 2001; Ellis, Child Custody 2010; Ike Vanden Eykel & Emily Miskel, The Mental Health Privilege in Divorce and Custody Cases (symposium, mid-year meeting of Am. Acad. Matrimonial Law., Mar. 2012), available at http://www.emilymiskel.com/pdfs/AAML.pdf [hereinafter Eykel, Mental Health Privilege 2012]; Gale Humphrey Carpenter, Overriding the Psychologist-Client Privilege in Child Custody Disputes: Are Anyone’s Best Interests Being Served?, 68 UMKC L. Rev. 169, 170 (1999). Although the most frequently cited case regarding psychotherapist privilege appears to be Kinsella v. Kinsella, 696 A.2d 556 (N.J. 1997), Florida courts do not appear to rely on it.

26 Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989); Roper v. Roper, 336 So. 2d 654, 657 (Fla. 4th DCA 1976) (stating “the trial court must maintain a proper balance, determining on the one hand the mental health of the parents as this relates to the best interest of the child, and on the other maintaining confidentiality between a treating psychiatrist and his patient”).

27 Ashleman v. Ashleman, 381 So. 2d 364, 365 (Fla. 4th DCA 1980).

28 Roper, 336 So. 2d at 656.

29 Leonard v. Leonard, 673 So. 2d 97, 99 (Fla. 1st DCA 1996); Oswald v. Diamond, 576 So. 2d at 910; Mohammad v. Mohammad, 358 So. 2d 610, 613 (Fla. 1st DCA 1978); Schouw v. Schouw, 593 So. 2d 1200, 1201-02 (Fla. 2d DCA 1992); O’Neill, 823 So. 2d at 840.

30 Peisach, 539 So. 2d at 546 (“[T]he custodial parent’s denial of allegations of mental instability does not operate as a waiver of the patient-psychotherapist privilege. To hold otherwise would eviscerate the privilege; a party seeking privileged information would obtain it simply by alleging mental infirmity.”).

31 Atty. Ad Litem for D.K., 780 So. 2d at 309 (“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.”); Hastings v. Rigsbee, 875 So. 2d 772, 779 (Fla. 2d DCA 2004); Flood v. Stumm, 989 So. 2d 1240, 1241 (Fla. 4th DCA 2008); Smith v. Smith, 64 So. 3d 169, 171 (Fla. 4th DCA 2011); see also Ellis, Child Custody 2010; O’Neill, 823 So. 2d at 840.

32 Am. Psych. Ass’n., Disclosure of Psychiatric Treatment Records in Child Custody Disputes (Task Force Report #31, 1991); Paruch, Psychotherapist-Patient Privilege 2008.

33 Segarra v. Segarra, 932 So. 2d 1159, 1161 (Fla. 3d DCA 2006).

34 Smith, 64 So. 3d at 171.

35 Koch v. Koch, 961 So. 2d 1134, 1135 (Fla. 4th DCA 2007).

36 Flood, 989 So. 2d at 1241.

37 Cohen v. Cohen, 813 So. 2d 1060, 1261 (Fla. DCA 2002).

38 Edward J. Imwinkelried, Evidentiary Foundations 837 (8th ed. 2012).

39 Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977).

40 Stansbury, Accessibility 2010.

41 Known as the “shield and sword rule.” One cannot present favorable testimony or evidence on a subject (sword), and then claim that subject is privileged to withhold disfavorable testimony or evidence (shield). Davidge v. Davidge, 451 So. 2d 1051, 1052 (Fla. 4th DCA 1984).

42 Segarra, 932 So. 2d at 1161. The psychotherapists’ consent form should reflect this and an authorization for disclosure should be completed to document that the patient is aware of the required disclosure. However, if the court order does not indicate that a report will be made to the court or another person, the counseling could be privileged. Stansbury, Accessibility 2010.

43 Waits, Mental Health Records 2001.

44 Mohammad, 358 So. 2d at 613; Critchlow, 347 So. 2d at 455.

45 Miraglia v. Miraglia, 462 So. 2d 507, 508 (Fla. 4th DCA 1984).

46 O’Neill, 823 So. 2d at 840.

47 Id.; see also Daly v. Daly, 624 So. 2d 304 (Fla. 4th DCA 1993).

48 Guerrier, 811 So. 2d at 856 (finding that because the purpose of the “dangerous patient” statute, Fla. Stat. §456.059, is to protect the potential victim, MHPs can be asked to testify against their patients); but see Boynton v. Burglass, 590 So. 2d 446, 451 (Fla. 3d DCA 1991) (holding no requirement to breach confidentiality); Phyllis Coleman & Ronald A. Shellow, Warning a Patient’s Intended Victim While Preserving Testimonial Privilege: A Statute to Regulate All Psychotherapists, 77 Fla. B. J. 20 (July/Aug. 2003) (discussing the Guerrier ruling in light of psychotherapist-patient privilege and confidentiality).

49 Eykel, Mental Health Privilege 2012.

50 Bernard P. Perlmutter, More Therapeutic, Less Collaborative? Asserting the Psychotherapist-Patient Privilege on Behalf of Mature Minors, 17 Barry L. R. 45, 70-77 (2011) (comparing federal and state constitutional considerations relating to psychotherapist-patient privacy and privilege) [hereinafter Perlmutter, More Therapeutic 2011]; Gerald P. Koocher & Patricia C. Keith-Spiegel, Children, Ethics, and the Law: Professional Issues and Cases (1990).

51 See, e.g., E.C. v. Guardian Ad Litem Program, 867 So. 2d 1193 (Fla. 4th DCA 2004); S.C. v. Guardian Ad Litem, 845 So. 2d 953 (Fla. 4th DCA 2003); Atty. Ad Litem for D.K., 780 So. 2d at 308. As no similar cases have yet appeared in other district courts of appeal, nor before the Florida Supreme Court, the decisions may be binding only in southeast Florida.

52 Accord Kasdaglis v. Dep’t of Health, 827 So. 2d 328 (Fla. 4th DCA 2002) (upholding a MHP’s right to assert privilege on behalf of a minor when facing a parent’s records request).

53 Atty. Ad Litem for D.K., 780 So. 2d at 306.

54 E.C. v. Guardian Ad Litem Program, 867 So. 2d 1193 (Fla. 4th DCA 2004); S.C. v. Guardian Ad Litem, 845 So. 2d 953 (Fla. 4th DCA 2003).

55 The GAL has no requirement to maintain confidentiality. Marcia M. Boumil, Cristina F. Freitas & Debbie F. Freitas, Legal and Ethical Issues Confronting Guardian Ad Litem Practice, 13 J. L. & Fam. Stud. 43, 52 (2011).

56 Accord C.M. v. Dep’t Children & Fam., 854 So. 2d 777 (Fla. 4th DCA 2003); Shea v. Global Travel Marketing, Inc., 870 So. 2d 20, 24 (Fla. 4th DCA 2003), rev’d on other grounds, 908 So. 2d 392 (Fla. 2005); Hughes, 872 So. 2d at 997.

57 Perlmutter, More Therapeutic 2011.

58 Ellis, Psychotherapist 2009; Ellis, Child Custody 2010; Perlmutter, More Therapeutic 2011; Mitchell, When Parents Want to Know 2002; Kathryn E. Gustafson & J. Regis McNamara, Confidentiality with Minor Clients: Issues and Guidelines for Therapists, 18 Prof. Psychol.: Research & Prac. 503-508 (1987) [hereinafter Gustafson, Confidentiality with Minor Clients 1987]; Linda Taylor & Howard S. Adleman, Reframing the Confidentiality Dilemma to Work in Children’s Best Interests, 20 Prof. Psychol.: Research & Prac. 79-83 (1989).

59 Gustafson, Confidentiality with Minor Clients 1987; Perlmutter, More Therapeutic 2011.

60 Leonard, 673 So. 2d at 99; Schouw, 593 So. 2d at 1201; Peisach, 539 So. 2d at 546; Flood, 989 So. 2d at 1242 n. 1; Koch, 961 So. 2d at 1134-1135; Ashleman, 381 So. 2d at 366.

61 Fla. R. Civ. P. 1.360(a) (2012); In re G.D., 870 So. 2d 235, 237 (Fla. 2d DCA 2004); Williams v. Williams, 550 So. 2d 166, 167 (Fla. 2d DCA 1989).

62 Smith, 64 So. 3d at 172; Doherty, 957 So. 2d at 1269; E.C., 867 So. 2d at 1194-1195; S.C., 845 So. 2d at 959; see also Peisach, 539 So. 2d at 547 (permitting only the production of relevant medical information).

63 Hastings, 875 So. 2d at 779; McIntyre v. McIntyre, 404 So. 2d 208, 209 (Fla. 2d DCA 1981).

64 See, e.g., Eykel, Mental Health Privilege 2012, National Legal, Discovery 1995; Perlmutter, More Therapeutic 2011; Stansbury, Accessibility 2010.

65 Stansbury, Accessibility 2010.

66 Gustafson, Confidentiality with Minor Clients 1987; Am. Psychol. Ass’n, Ethical Principles of Psychol. & Code of Conduct, Standard 4.02 (2002); Susan A. Dwyer, Informed Consent in Court-Involved Therapy, 9 J. Child Custody 108-125 (2012); Gail L. Perlman, A Judicial Perspective on Psychotherapist-Client Privilege: Ten Practical Tips for Clinicians, 9 J. Child Custody: Research, Issues, & Prac. 126-152 (2012).

67 Am. Psychol. Ass’n, Ethical Principles of Psychol. & Code of Conduct, Standard 1.02 (2002).

68 Floyd L. Jennings & J. Ray Hays, How are Treating Psychologists to Respond to Requests for Court Testimony?, 3 Open Access J. Forensic Psychol. 19, 26-29 (2011).

69 Am. Psychol. Ass’n, Ethical Principles of Psychol. & Code of Conduct, Standard 4.04 (2002).

70 E.g., Fla. Admin. Code R. 64B19-18.007(1).

71 Atty. Ad Litem for D.K., 780 So. 2d at 310 (“We do not think that the patient/psychotherapist privilege should be overcome simply to satisfy the routine practice of the evaluator and psychologist.”).

72 Bruce G. Borkosky, Why Forensic Records Are No Longer “Owned” by the Referral Source: Psychologists Are Required to Permit Patient Access and Release of Forensic Records, 63 Fla. Psychol. 8-9, 22-23 (2012).

73 Atty. Ad Litem for D.K., 780 So. 2d at 310 (“[U]nder section 90.705(1) an expert testifying to an opinion may be required, on cross-examination, to reveal the underlying facts and data upon which the opinion is based. Therefore, the expert could not rely on confidential psychotherapist/patient communications without revealing them to the parties and the court.”).


Mark S. Thomas, of the Thomas Health Law Group, P.A., in Gainesville and Santa Rosa Beach, is board certified in health law. Previously, he was chief of staff for the Florida Agency for Health Care Administration and director of the Florida attorney general’s Medicaid Fraud Control Unit.

Bruce Borkosky received a B.A. in psychology from Ohio Wesleyan University, an M.CS in computer science from the University of Dayton, and M.A. and Psy.D. degrees from the Miami Institute of Psychology, in 1991 and 1993, respectively. Dr. Borkosky has been in the independent practice of psychology since becoming licensed in 1994.

This column is submitted on behalf of the Family Law Section, Carin Marie Porras, chair, and Sarah Kay, editor.

[Revised: 05-02-2013]