Posted by Nydia Streets of Streets Law in Florida Child Custody
A therapist who treats a minor child may be barred from testifying about the child’s treatment by Florida’s psychotherapist-patient privilege. This privilege means information related to the treatment is confidential and may only be disclosed if allowed by the patient. In the case of a minor child who is not competent to decide whether privilege should be waived, who can speak for the child in this regard? This was an issue in the case S.H.Y. v. P.G., 2D19-4646 (Fla. 2d DCA March 26, 2021).
The parties were in court on a petition for modification of a final judgment. The father sought modification of timesharing, child support and other matters. The parties’ child was being seen by a psychotherapist. About a year prior to a hearing on the father’s petition for modification, the therapist was subpoenaed for deposition. The therapist appeared at the deposition with an attorney, produced her file and testified without objection about her treatment of the child. The therapist also later testified at an emergency hearing and at no time raised the issue of the child’s privilege against her testimony. For the first time, the therapist raised the issue of privilege around the time of the final hearing, arguing a guardian ad litem should be appointed to determine if the child should waive her privilege. The trial court granted the motion to prevent the therapist from testifying, ruling the privilege applied. The mother appealed.
The appellate court noted according to Florida Statute 90.503:
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
(3) The privilege may be claimed by:
(a) The patient or the patient's attorney on the patient's behalf.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
The appellate court went on: “When the patient is a minor, the law recognizes ‘that a child has a privilege in the confidentiality of her communications with her psychotherapist.’ [internal citations omitted]. But where the minor lacks that mental capacity, section 90.503(3) allows a patient's attorney, guardian, or psychotherapist to make that decision on the patient's behalf. While parents, as legal and/or natural guardians, have traditionally acted on behalf of minor children when making important decisions regarding a child's physical and mental health, the courts draw exception in child custody matters recognizing that the parents' interests may not always be aligned but rather conflict.”
The court concluded: “Here, [. . .] the record clearly establishes that the psychotherapist chose not to invoke the privilege on behalf of the minor child at several stages in this custody action: (1) when she was served with the deposition subpoena duces tecum; (2) when she appeared and testified at her deposition and produced records responsive to the subpoena; (3) when she appeared at the emergency hearing and testified giving her conclusions to the court; and (4) when her counsel initially appeared at the final hearing requesting protection due to a family emergency. [. . .] Therefore, the belated attempt to have the court appoint a guardian ad litem to determine whether to waive the privilege had no effect on those matters previously disclosed—the horse was already out of the barn. [internal citation omitted]. Therefore, our opinion here is limited to the issue of the waiver of the psychotherapist-patient privilege as to those privileged matters previously disclosed by the psychotherapist and in no way reaches the evidentiary or admissibility issues that may arise at the retrial of this case. Because a waiver of the psychotherapist-patient privilege is not irrevocable, the psychotherapist was well within her authority to assert the privilege as to matters not previously disclosed.”
When delicate matters such as the privacy of therapy sessions is at issue, it is important to seek legal counsel. Contact a Miami family law attorney to schedule a consultation about your case.