Therapeutic Privilege and Custody Evaluations: Discovery of Treatment Records

Abstract

Mental health professionals play a variety of roles in family law litigation. Each role has its own set of principles, rules, and responsibilities. It is important therapists understand the implications of their giving input in litigated cases, that they are aware of the need to obtain proper informed consent from their patients before disclosing confidential therapy information, and that they understand how their relationship with their patient may be affected by their involvement in litigation. This article explores the issue of therapeutic privilege in custody evaluation and issues surrounding the discovery of treatment records in such cases. The competing need for the court to have adequate information to make well‐advised orders regarding children must be balanced against the patient's privacy and the need to emsure that those seeking therapy at what is a particularly stressful time in their lives are not unduly impacted by concerns that the therapist–patient privilege may be compromised. Keypoints for the Family Court Community: Conflicting goals and roles for mental health professionals in custody litigation Protection of the psychotherapist–patient privilege and therapeutic alliance versus the state's interest in knowing information pertinent to understanding the best interests of children Legal precedents related to the protection of confidentiality and the psychotherapist–patient privilege The importance of informed consent in the disclosure of treatment progress and treatment records