Minor's Privilege: Florida Follows California by Zachary Pelchat, Former Legislative Counsel The Therapist (January/February 2002)

Trial Court
D.K. was a seventeen year old female minor who told her treating therapist about sexual abuse. She reported that her father sexually abused her when she was between the ages of three and seven. Mother filed for divorce, and the court appointed both a custody evaluator and a psychologist to the case. Father's attorney sought the minor's psychotherapy records and in response, the minor - through the attorney ad litem appointed to her - asserted her psychotherapist-patient privilege. Both mother and father agreed to have the minor's psychotherapy records produced. In addition, both the court appointed custody evaluator and court appointed psychologist testified that releasing the treating therapist's records would be in the "best interest of both children to obtain all of the records to evaluate the custody issues."

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
In their decision, the appellate court discussed the general guardianship rights of parents, and parents' ability to make decisions for their minor children. The court also discussed some established exceptions to that general rule, including minor's consent to treatment and minors invoking their own constitutional rights in criminal investigations. The question raised by this case was a "question of first impression" for the jurisdiction. That is, it was a legal decision that had never been made in that jurisdiction, thus there was no binding precedent to follow. This is also known as a "test case." When a court has no binding precedent to follow it will often look to "persuasive authority," precedent set in other jurisdictions. In this case, Florida looked to California and Maryland.

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
The Florida court then turned to California. The Florida court noted that its law of psychotherapist-patient privilege was similar to California's.iv The Florida court then quoted an entire paragraph from In re Daniel to illustrate the "substantial privacy interest" a minor has in his or her psychotherapy records. After analyzing California and Maryland statutory and case law, the Florida court stated: "We conclude both from the plain meaning of our own statute, as well as the weight of authority from other jurisdictions, that a child has a privilege in the confidentiality of her communications with her psychotherapist."v

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

Conclusion
In the Florida case, the appeals court had to balance the minor's privacy interest, the parents interest in raising their children, and the court's interest in determining the best interest of the child. It concluded: "Unfortunately, sometimes the parents are the cause of abuse, both emotional and physical, of their children. Allowing parents complete access to their children's health care records under all circumstances may inhibit the child from seeking or succeeding in treatment."vii The Florida decision also highlights the major contention in In re Daniel, the divergence of interests. "…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."viii

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.