Mental Health Privilege & Maryland Divorce Blog Law Series – Part 6
This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).
To recap:
A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential. Privileged information cannot be used in contested litigation unless the privilege is waived.
Privilege attaches when certain types of professionals provide mental health services. Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider. The scope of privilege depends upon the type of provider, and privilege does not protect everything known by or in the records of a mental health provider (except social workers).
The client holds & can waive the privilege. In family therapy, all participants must waive. Group therapy (therapy among strangers) is not privileged.
Parents & Spouses
Parents & spouses waive their privilege when they:
- Raise mental health as a claim or defense
- Expressly waive their privilege (this may look like a signed waiver)
- Call their therapist as a witness & offer privileged information into evidence
- Name their therapist as an expert witness
- Intentionally disclose privileged information (Davis v. Petito, 197 Md.App. 487 (2011))
A waiver need not be in writing or a particular form (In re Matthew R, 113 Md.App. 701 (1997)). Intention to waive must be expressed, whether in word, act, or omission (failure to assert) (Id.). This means inadvertent disclosure, without intent to waive, is unlikely (though I have yet to find an appellate opinion clearly establishing this).
Privileged records and information are presumptively privileged. The party asserting waiver has the burden/responsibility to prove that waiver occurred.
Children
A child’s privilege in their parents’ custody case is waived by a Child Privilege Attorney or other child counsel attorney with privilege determination rights. That attorney may waive the privilege on the record or is allowed to file their privilege decision with the Court. Intentional disclosure of privileged information by the attorney or with the attorney’s consent/knowledge is also waiver (Davis v. Petito, 197 Md.App. 487 (2011)).
Up next: Winding down this series with random FAQs.
