Once you know a privilege exists you must determine whether 1) the communication is an exception to the privilege or 2) whether the privilege has been waived.
Regarding element (1) of this analysis, there are several common exceptions to privilege.It is likely that you are familiar with the first two exceptions. They are child abuse and elder abuse. Another exception is in Baker Act proceedings where there are allegations of self-harm or harm to others.
A less frequently discussed, but very important exception, is when the patient has relied on his or her condition as a part of their legal claim or defense. This was seen in the case of Critchlow and Critchlow (347 So.2d 453, 3rd DCA 1977) where the wife filed a Petition for Dissolution of Marriage and claimed therein that she was "a fit and proper person" to have custody of her 3 year old child. After filing the pleading she voluntarily submitted herself for mental health treatment and the Court allowed the treating professionals to be deposed. This does not mean that every parent seeking custody falls into an exception to privilege but instead that there are some fact patterns where that may well be the case.
The last way to circumvent privilege is by a waiver. Privilege must be asserted in a timely fashion or it will be waived. This is very important. The privilege may be asserted by the patient, the psychotherapist, or a lawyer, so long as the person asserting the privilege is doing so "on behalf" of the patient and not for a self-serving purpose. (It is for this reason that a parent may not be able to waive the privilege on behalf of their child. This will be the topic of a future article entitled Children's Rights in Therapy.) If a person fails to assert the privilege then a waiver will have been deemed to have occurred and the therapist MUST then testify and /or release records.
In any of the circumstances discussed, where a) no privilege existed because an element of the claim was missing b) an exception to privilege exists or c) a waiver has occurred the therapist must testify and or release records related to the treatment.
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