Florida has followed California's lead in protecting minor's psychotherapist-patient privilege.i In California, the minor - not the parent - is the holder of the psychotherapist-patient privilege. However, because minors cannot make legal decisions, the court makes the decision to waive or assert the psychotherapist-patient privilege held by the minor. The court can make this decision in three ways: first, deciding itself, second, through minor's counsel, or third, through a guardian appointed by the court. A recent Florida case pit the wishes of the minor and her counsel against the minor's parent's instructions. The trial court ruled in favor of the parents, but the appellate court reversed the trial court decision and ruled in favor of the minor and her counsel. In making its decision, the appellate court explicitly cites the holding and reasoning of California's seminal case, In re Daniel.ii
The trial court ordered the treating therapist's records released to the court appointed custody evaluator and psychologist. The court based its decision on the fact that the parents had waived the privilege and that the evaluator and psychologist determined they needed the records to complete their evaluations. The minor, through her attorney ad litem, appealed that decision to the District Court of Appeal of Florida for the Fourth District.
Court of Appeals
The Florida court
found that Maryland protected the minor's privilege. In the leading
Maryland case, the non-custodial father sought to waive the minor child's
privilege. The custodial mother refused to waive the psychotherapist-patient
privilege on behalf of the child. Both the trial court and the appellate
court ruled in favor of the mother, vesting the right to waive privilege
in the custodial parent. It was the state Supreme Court that finally
protected the child's interest. In Nagle v. Hooks, the Maryland Supreme
Court held that "the parents, jointly or severally, may neither
agree nor refuse to waive the privilege on the child's behalf."iii
Finally, the appellate court discussed whether there were any exceptions to privilege that applied in this particular case and determined there were not. "Unless one of the statutory exceptions to the privilege applies, the daughter is entitled to assert the statutory privilege..." This is also the case in California. An adult or minor may be in a situation where "privilege does not apply," such as when he or she tenders his or her mental or emotional condition at issue in a legal proceeding.vi
Many therapists are painfully aware of the way in which divorced or divorcing parents use their children as weapons against one another. Protecting minor's privilege is one way the courts can stop parents from using their children as tools for their own gain. Unfortunately, there are many therapists, lawyers, and judges who are not aware of this protection and simply accept a parent waiving privilege on behalf of his or her minor child. If you are subpoenaed for the records of a minor patient, you must receive a waiver from minor's counsel, the court appointed guardian, or the court itself prior to releasing the records. If the attorneys or judge you are dealing with do not understand the law of minors and privilege, give them a copy of this article so they can read the cited cases themselves. Remember, if you are a member of CAMFT, you can always call for a consultation.
This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
i Attorney ad Litem for D.K., a minor, v. Parents of D.K. (2001) 780 So.2d 301
ii In re Daniel C.H. v. Daniel O.H.(1990) 53 Cal.3d 522
iii Nagle v. Hooks (1983) 460 A.2d 49, 51-52
iv See California Evidence Code §1013
v Attorney ad Litem for D.K., a minor, v. Parents of D.K. (2001) 780 So.2d 301, 307
vi See California Evidence Code §1016
vii Attorney ad Litem for D.K., a minor, v. Parents of D.K. (2001) 780 So.2d 301, 310
viii Id at 306