Protecting the Privilege
Often in family law cases, the emotional and psychological health and fitness of one or both parties will be considered. The court will frequently assess the mental health of parents in custody cases and may consider the mental health of a spouse when making a judgment on alimony or spousal support. In certain cases, the mental health of a spouse could even affect how the marital property is divided if he or she could were not self-sufficient because of a mental health issue.
Typically, patient/provider communications and provider notes from psychologists and psychiatrists are protected and considered privileged information. This is the patient’s privilege. This means the provider cannot share this information without the express consent of the patient, with a few exceptions. The right to confidentiality poses an obvious problem when it comes to divorce and other family law cases. If the court or the opposing party feels privileged mental health information is relevant to the case, that information may need to be accessed even without the consent of the patient.
Sometimes it is essential for the court to consider a parent’s or spouse’s mental health before it can make a decision, and mental health records need to be a part of that process. Thus, one of the exceptions to the mental health privilege is when the mental health of a patient directly relates to a legal proceeding such as child abuse proceedings, custody proceedings, and other family law cases. Lawyers can use a variety of methods to obtain mental health care records, and the general rule of thumb is if a lawyer needs mental health care records for the case, and for good cause, the records can usually be obtained. The provider must submit to legal requests and cannot protect the patient’s mental health privilege if subpoenaed.
When mental health records are obtained in a legal case, the usage of those records is restricted. The records can be filed under a certain cover to minimize the amount of information that enters the public record. The records can also be redacted, which means certain pieces of identifying information (e.g. social security numbers or addresses) that regularly appear on health care records are blocked from view.
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