Mary Alice Fisher (2008)
1. In contrast to Virginia , the thirteen (13) states listed below model their psychologist-client privilege statutes after attorney-client privilege (Glosoff, Herlihy, Herlihy, & Spence, 1997):
|Alabama, Arkansas, Arizona, Georgia, Idaho, Kansas, Montana, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee, Washington
(See excerpts from these statutes here on this site.)
Compared to the confidentiality rights of mental health patients in these states, Virginia patients are extremely disadvantaged: Anything they say in a therapy relationship may later be used against them as evidence in a court case.
2. In contrast to Virginia, the privilege statutes in most states do NOT contain a “judicial discretion exception.” Very few states have this broad exception to therapist-client privilege. Privilege law commentators describe it as the “least predictable” of all possible exceptions to privilege. The advantage to the court is that in any case, regardless of circumstances, the judge may admit mental health information as evidence. The corresponding disadvantage to a prospective therapy patient is that it is impossible to predict when it will be safe to confide in a mental health professional. Neither therapists, petitioners nor patients can calculate in advance “the extent or limitations of the privilege” (Knapp & VandeCreek, 1987, p. 37).
In Virginia, that “judicial discretion exception” exists in all court cases involving doctor-patient and therapist-patient relationships. [See § 8.01-399 and § 8.01-400.2 .] Because of this exception in Virginia’s privilege statutes, Virginia judges, at their discretion, can override therapist-client privilege whenever they deem the admission of mental health information to be “necessary for the proper administration of justice.” However, the Virginia Health Records Privacy Statute does give more protection to health care records than to other types of evidence, allowing judges to weigh a number of factors when deciding whether to quash a subpoena, including “(i) the particular purpose for which the information was collected; (ii) the degree to which the disclosure of the records would embarrass, injure, or invade the privacy of the individual; (iii) the effect of the disclosure on the individual’s future health care; (iv) the importance of the information to the lawsuit or proceeding; and (v) any other relevant factor.” (See §32.1-127.1:03, Paragraph H-6)
3. In contrast to Virginia, many states have a general therapist-client privilege statute that offers a level of protection equivalent to that now available in federal cases (e.g., see state citations in Jaffe v. Redmond, plus the state statutes linked above). In most states, that same level of privilege applies in custody cases. Thus, in most states, a parent who obtains therapy is not placed at a disadvantage in a custody case.
4. In contrast to Virginia, most states do NOT presume that filing for custody constitutes an automatic waiver of privilege. For example, appellate courts in New York state consistently deny “discovery” of therapy information in custody cases. In fact, many states explicitly hold that the privilege is maintained in custody cases (Knapp & VandeCreek, 1985; 1987), so parents’ therapy records are not automatically vulnerable to subpoena.
In determining custody, Virginia judges must consider numerous factors, including “the age and physical and mental condition of each parent” (§ 20-124.3, item 2). However, nothing in this statute indicates what information should be used in making this determination, how it should be obtained, or how it should be weighed against other factors. Judges often make custody determinations in cases where neither parent has received mental health services, so obviously, access to therapy records and/or therapist testimony is not (and has never been) necessary for making the required “best interest of the child” determination under § 20-124.3. In fact, for decades, Virginia courts made custody determinations without ever contacting therapists. Prior to the 1975 enactment of Virginia’s child abuse reporting law (and the resulting exception to privilege in child abuse cases), therapists were rarely in court voluntarily, and were almost never subpoenaed. This changed only when mental health professionals became more visible as repositories of valuable information that might be useful as evidence.
Virginia attorneys Coughter & Tweel (2002) nevertheless acknowledge that Virginia lawyers and judges are “accustomed to breaching this area of confidentiality” (p. 170). In other words, Virginia attorneys take advantage of the “judicial discretion exception to privilege” by routinely issuing subpoenas for mental health records on the presumption that the court will find them admissible. This wholesale use of subpoena power to obtain information from therapy is not possible in most states. The fact that the “judicial discretion exception” made the therapy information of Virginia parents so available does not mean it was ever necessary for making good custody determinations, or that it should remain so available for that purpose.
Most states operate on the assumption that, if a parent’s mental health is in question, an independent custody evaluation is the appropriate method for resolving the custody issue. A report from such an evaluation is designed for that purpose (APA, 1994; 2007), unlike client therapy records that contain information collected for other purposes.Because of Virginia’s “judicial discretion exception to privilege,” however, Virginia attorneys can presume that therapy records or therapist testimony might be ruled admissible in any case; so they routinely issue subpoenas to therapists (Caughter & Tweel, 2002), sometimes for the purpose of conducting “fishing expeditions” into the psychotherapy records of any parent who becomes involved in a child custody dispute.
Therefore, in contrast to parents in most states, Virginia parents, like other therapy patients, are routinely faced with this risk, and bear the burden of attempting to quash the supoenas that result. Virginia clients are unable to predict how a judge might rule on the admissibility of their therapy information. The outcome of a “Motion to Quash” varies from judge to judge; and for any given judge it varies from case to case. This after-the-fact solution leaves mental health consumers vulnerable to the possibility that, at any stage of any case, their therapy information might be ruled admissible. This means that anything said to a therapist might be used as evidence against the client, whether appropriately or not.
5. In light of the above, it is especially important that Virginia therapists understand their ethical responsibilities when they receive a subpoena (Fisher, 2008). Contrary to the legal advice they might receive from the attorney issueing the subpoena (and sometimes even from the client’s attorney), unless the client signs a consent form authorizing release of the information, therapists have an ethical responsibility (APA Committee on Legal Issues, 2006; Bennett et al., 2006; Koocher & Keith-Spiegel, 2008) and perhaps a legal responsibility (Fairfax Hospital v. Curtis, 1997) to file a motion to quash the subpoena so that a judge can make the final decision about whether disclosure is legally required, by issuing either a protective order or a court order for release of the information.
The advice below is from an ethics text for mental health professionals (Koocher & Keith-Spiegel, 2008):
|“On occasion, a subpoena generated by an attorney opposing the therapist’s client or representing another person may arrive at a therapist’s office. Under such circumstances, it is reasonable to contact the attorney who issued the subpoena and say, “I can not disclose whether the person noted in the subpoena is now or ever was my client. If the person were my client, I could not provide any information without a signed release from that individual or a valid court order.” [emphasis added] Next, contact your client, explain the situation, and ask for permission to talk with his or her attorney . . . .” (p. 210).|
The further advice below is from a risk-management handbook from the APA Insurance Trust (Bennett et al., 2006):
|“In general, [involving disclosures in court cases] a psychologist may only disclose information with the consent of the patient or in response to a court order. The receipt of a subpoena alone without the consent of the patient does not override this requirement. [emphasis added] A court order, however, overrides the need to obtain patient consent. . . . “Psychologists are required to respond to a subpoena, but they are prohibited from releasing records merely upon the receipt of a subpoena. In most instances, the psychologist should inform the requesting party, in writing, that the receipt of a release of information form (authorization) signed by the patient is required prior to releasing information in response to a subpoena. . [emphasis added].
“”Unfortunately,many attorneys do not understand that psychologists have limited discretion for releasing records. Attorneys representing patients (or sometimes attorneys representing parties adverse to the patient’s interests) may misinform psychologists of their legal obligations and instruct them to release records in response to a subpoena alone. Do not be bullied by these tactics. It is best to seek legal consultation in situations in which the requirements are unclear.. . .
“A court order issued by the presiding judge does compel the release of records or testimony as specified in that order . . . If you have a good reason to challenge a court order, most judges will want to learn of your concerns.” (p. 111)
American Psychological Association (1994) Guidelines for Child Custody Evaluations in Divorce Proceedings. American Psychologist 49, 677-680.
American Psychological Association (2007) Guidelines for Evaluating Parental Responsibility (draft). At http://www.thelizlibrary.org/liz/APA-GEPR-0705.pdf
American Psychological Association Committee on Legal Issues. (2006) “Strategies for Private Practitioners Coping With Subpoenas or Compelled Testimony for Client Records or Test Data. Professional Psychology: Research and Practice, 37 (2), 215-222.
Bennett, B.E., Bricklin, P.M., Harris, E., Knapp, S. VandeCreek, L., & Younggren, J.N. (2006) Assessing and Managing Risk in Psychological Practice: An Individualized Approach . Rockville, MD, American Psychological Association Insurance Trust.
Coughter, E. P. & Tweel, R. R. (2002) Family Law. U. Richmond Law Review 37, 155-198. (Discussing provisions of the now-repealed privilege statute, § 20-124.3:1.)
Fairfax Hospital v. Patricia Curtis (1997). Virginia Supreme Court Record #962068, October 31, 1997.
Fisher, M.A. (2008). Protecting Confidentiality Rights: The Need for an Ethical Practice Model. American Psychologist, 63 (1), 1-13.
Glosoff, H.L., Herlihy, S.B., Herlihy, B. & Spence, E.B. (1997) Privileged Communication in the Psychologist-Client Relationship. Professional Psychology: Research and Practice, 28, 573-581.
Jaffe v. Redmond, 116 S.Ct. 95-266, 64L.W. 4490 (June 13, 1996)
Knapp, S. & VandeCreek, L. (1985) Psychotherapy and Privileged Communications in Child Custody Cases. Professional Psychology: Research and Practice, 16, 398-407.
Knapp S. & VandeCreek, L. (1987) Privileged Communications in the Mental Health Professions. New York, Van Nostrand Reinhold.
Koocher, G.P. & Keith-Spiegel, P. (2008). Ethics in Psychology and the Mental Health Professions: Standards and Cases, Third Edition. New York, Oxford University Press.