Mental Health Privilege

It is not uncommon for a divorcing family to have a history of treatment by mental health professionals.  When a party suffers from a significant mental or emotional instability, divorce and parenting issues can be exacerbated by the destabilizing influence of the party’s condition.  Or the family may simply have sought counseling in the course of their lives together to help them cope with common stresses.  The parties and the family may have developed certain behavioral dynamics that are presented at the time of divorce as support for conflicting positions as to what should be done with the division of the parties’ property or the care for their children.

In these situations, a party may wish to obtain the mental health records of the other party or a child to bolster their view of the appropriate outcome of the divorce.  But disclosure of these records is not automatic, and it may be appropriate in certain circumstances to seek to prevent the disclosure of mental health records.  These general principles apply to the consideration of whether mental health records are appropriately disclosed in a divorce case or case involving the interests of children:

Definition of Mental Health Records

Under the Texas Rules of Evidence, mental health records are confidential communications between a professional and patient.  A “professional” is defined broadly as any person authorized to practice medicine in any state or nation, licensed to treat mental or emotional disorders, involved in substance abuse treatment, or reasonably believed by the patient to be in one of these categories. A “patient” is defined broadly as any person who consults or is interviewed by a professional for purposes of diagnosis, evaluation or treatment of any mental or emotional condition or disorder, including alcoholism and drug addition.  A communication is “confidential” if it is not intended to be disclosed to third persons other than those present to further the interest of the patient in diagnosis, examination, evaluation, or treatment, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis, examination, evaluation, or treatment under the direction of the professional, including members of the patient’s family.

Protection of Your Mental Health Records

Communications between a mental health care provider and a patient are confidential and shall not be disclosed absent some exception to the mental health provider-patient privilege.  That means that generally your mental health records do not have to be disclosed to anyone besides yourself.  There is, however, an exception to this privilege.  Your mental health records may be disclosed if your mental health information is relevant to an issue of your physical, mental, or emotional condition in any proceeding in which any party relies upon the condition as part of the party’s claim or defense.  Examples of when the exception might apply are:

a. A party alleges child abuse and/or neglect.

b. A judge orders one or both of the parties to undergo mental health counseling and/or evaluation.

c. One party alleges the other is unfit for possession because of mental illness or chemical dependency.

d. A child’s mental condition is in dispute.

Protection of Your Child’s Mental Health Records

The same mental health provider-patient privilege applies to your child’s mental health records.  For example, a parent does not have an automatic right to see your child’s mental health records.  A parent has access to a child’s confidential records if the parent “is acting on the patient’s behalf.”  When a parent who requests records is not acting on behalf of the child, a mental health professional is not required to provide access to a child’s confidential records.  In appropriate cases, a parent may act on his or her child’s behalf to protect the disclosure of that child’s mental health records.