Forensic Corner; Be Careful What You Write in the
Record
Lee H. Haller, M.D.
In the last issue, I discussed a case from Washington
where a school record, including psychological testing,
was subpoenaed and an objection was filed to it being
released. The court ruled that there was not psychologist-patient
privilege and therefore the entirety of the record must
be released. In a somewhat similar case, also from Washington,
comes another court ruling, which limits the doctor-patient
privilege. In this case, the husband and wife were seen
in joint therapy sessions with a psychologist while
the wife was a patient in a hospital based counseling
program. The husband and wife separated and there was
a dispute over child custody. The husband sought release
of the records which contained statements made by the
wife about her own alcohol usage. The records were released
and the former wife sued the hospital for emotional
distress, alleging that the release constituted a breach
of the psychologist-patient privilege. Summary judgment
was granted and the appellate court affirmed. In doing
so, the court stated that where there had been joint
counseling provided, and the litigation involved two
parties who had been involved in the counseling, that
even though there usually would be a psychologist-patient
privilege, it did not protect statements made by one
of them to a therapist during joint counseling sessions.
The point here is that both of these cases involve
situations where one would normally think that a doctor-patient
privilege would apply. However, in neither case did
that position prevail and the records were released.
The case involving the husband and wife is particularly
interesting in that there is little in the case law
that covers the doctor-patient privilege when there
is more than one patient in the room. There have been
other cases where the court has ruled that any time
there is more than one patient in the room with the
therapist, there is privilege.
The potential ramifications of this decision are troublesome.
It means, at least in the state of Washington, that
whenever one is treating a couple, one has to assume
that anything written in the record can be obtained
by either spouse and used by one spouse against another,
should the marriage dissolve and child custody be disputed.
Given this, part of informed consent at the beginning
of treatment would be to notify both parties of such
a potential outcome should they wind up divorcing and
contesting custody.
Additionally, the psychiatrist would do well to be
quite careful about what is written into a record when
doing marital therapy, keeping in mind that the records
might eventually be subpoenaed in an effort to utilize
the information contained therein to demonstrate that
one parent was less fit to be custodian of the children
because of some emotional problem.
Do not, however, take the above case material as in
any way suggesting that you, as the doctor, should release
records of a couple upon receipt of a subpoena or upon
the request of one of them. Rather, an appropriate response
would be to contact the other parent to see if that
person had any objections to the record being released.
If there is no objection, then an authorization to release
the records should be obtained from both parties. In
the event that one party objects, then it is up to that
party to move to quash the subpoena.
If you recall, from the last newsletter, Dr. Schetky
was brave in defense of her ethics and chose to oppose
a subpoena that arrived on her doorstep commanding her
to produce records of one of her patients. She was able,
via the patient's attorney, to succeed in getting the
subpoena quashed. Thus, she did not have to wind up
releasing the records. She stood on her ethics and was
aptly rewarded, feeling vindicated when the decision
was overturned. For a therapist to take a similar stance
in a case such as the one I have described is not nearly
as likely to be successful for two reasons. First of
all, there is more that one "patient" in the room with
the doctor. At least one other jurisdiction has ruled
that when this is the case, there is no doctor-patient
privilege. Secondly, in the case that Dr. Schetky described,
the mental health of her patient was not really an issue
in the litigation. In marked contrast to her case, the
mental health of both of the parents is very much an
issue in a contested custody litigation.
The question arises as to what would happen to these
records should the parents have been seen in parent
guidance (as opposed to marital therapy) where the identified
patient was the child. In subsequent litigation, one
party or the other might well subpoena the records.
Here again, it behooves the therapist to fight such
a release unless both mother and father concur in the
release. In the instance where one parent desires the
records and the other parent does not want them released,
and the child is the patient, it would seem to make
sense that the holder of the privilege should be the
guardian of the child. In normal circumstances, this
is either parent. However, in the contested custody
litigation, it would certainly make sense for the court
to appoint an independent guardian ad litem for the
child who could discuss with the therapist the impact
on the child of having the information released to the
attorneys and the court. If the guardian for the child
did not see this to be of benefit to the child, then
he or she could object on behalf of the child and seek
to have the subpoena quashed. This processing would
protect the child as well as the therapist.
In summary, be careful what you write in the record.
When you receive a subpoena and more than one person
was involved in the treatment, be sure to check with
the other party involved as to whether that person wishes
for you to comply with the subpoena or wishes to move
to quash it. If the identified patient in the treatment
is the child, then it might make sense for the therapist
to encourage the party who is objecting to the release
to move to have a guardian ad litem appointed to determine
whether or not the records should be released, using
a "best interest of the child" test. Finally, when in
doubt, consult your own attorney.
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland
AACAP/News/March-April
1995 |
