Mental Health Records in Custody Cases

Increasingly, child custody cases have included claims that one or both parties are suffering from psychological disorders.  All too often litigants will self-diagnose the other party with a bipolar disorder, narcissism or some other multiple-personality disorder.  As a practitioner it is important to understand what information is available to us in the course of preparing for a conciliation or trial.

In 2009, the Superior Court of Pennsylvania ruled in Gates v. Gates, 967 A.2d 1024, that a party to a custody proceeding could not be compelled to produce her mental health records where she did not otherwise waive statutory privilege of confidentiality.  In Gates, Mother argued that her mental health records were statutorily privileged pursuant to Section 7111(a) of the Mental Health Procedures Act (“MHPA”), and 42 Pa.C.S.A 5944.  While Section 5944 only applies to confidential communications with a psychiatrist or psychologist made during the course of treatment, Section 7111(a) of the MHPA applies to all documents regarding mental health treatment.  50 P.S. 7111(a).  The Superior Court agreed, and held that Mother’s mental health records were not subject to disclosure.

The Superior Court in Gates, noted that a less intrusive alternative was present in Pa.R.C.P. 1915.8 by which a court could compel a litigant to submit to a mental health evaluation.  In the case of M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), Father did submit to a court ordered evaluation.  He complied with the requirement to release his prior records to the evaluator in order to facilitate the evaluation.  However, at the time of a later hearing the trial court sought disclosure of Father’s mental health records due to its concerns related to the perceived severity of Father’s illness.  Father invoked the statutory privileges of the MHPA, and 42 Pa.C.S.A. 5944.  The trail court found that Father had waived those privileges when he complied with the mental health evaluation, and when he previously agreed to provide proof of continued treatment.  Father appealed.

The Superior Court in M.M., found that Father had not waived the statutory privileges.  Father’s compliance with the court ordered evaluation did not constitute a waiver, and therefore, the trial court was not empowered to compel the disclosure of otherwise confidential information to the other party.  Similarly, Father’s authorization to release information from his treating doctor that would ensure compliance with appointment dates and drug tests by way of blood samples did not constitute a general waiver.

As attorneys, we must make sure that we preserve the confidential nature of our clients’ mental health records.  Conversely, those seeking the disclosure of records need to recognize that the disclosure of such information is not readily available, and that the only reliable means of inquiry is through a mental health evaluation pursuant to Pa.R.C.P. 1915.8.

If you or someone you know is experiencing similar issues please do not hesitate to contact one of our experienced attorneys.


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