TBA Law Blog


Posted by: Jeffrey Levy on Apr 26, 2016

Journal Issue Date: May 2016

Journal Name: May 2016 - Vol. 52, No. 5

The issues faced by the Court of Appeals in addressing parents’ mental health records are complex. Our courts do have a duty to protect the best interest of children.[1] Important as this may be, this is not the only duty that the courts have. They must also take into account a need to respect patient privacy, encourage individuals to seek treatment, focus on a parent’s actual current ability to care for his or her children and not retroactively withdraw promises of confidentiality.

The essential facts of Culbertson are straightforward. The parties were in a contested divorce where custody was at issue. The husband had a history of treatment for mental health issues. The wife had also made allegations regarding the husband’s behavior and supposed danger to the parties’ children. During the course of litigation, at the wife’s request the trial court ordered a Rule 35 examination of the husband that, as it turned out, was favorable to him. The wife, seeking additional grounds for limiting the husband’s access to the children, then sought all of the husband’s past mental health records, including statements he had made in confidence to his therapists. The trial court granted the wife’s request. Husband appealed, and the Court of Appeals granted two separate interlocutory appeals.

In Culbertson I,[2] the court reviewed the psychologist-patient privilege found in Tenn. Code Ann. §63-11-213, found that the husband had not waived privilege simply by seeking custody or defending against the wife’s allegations, further found that the trial court had erred by ordering disclosure of the records to the wife by failing to consider privilege or waiver but nevertheless ordered disclosure of the records to the trial court for an in camera review on the issue of comparative fitness.

Culbertson II,[3] two years later, held:

  • A Rule 35 examination is the preferred choice to determine a party’s mental state.[4]
  • Privilege attaches only to personal communication and not to the treating therapist’s opinions, observations, diagnoses or suggested treatment alternatives.[5]
  • Testimony as to the existence of a psychologist-client relationship does not itself constitute a waiver of privilege.[6]
  • If a party relies on the favorable results of on a Rule 35 examination, this does not constitute a general waiver of privilege for all mental health records.[7]
  • Consent given for an evaluating psychologist to have access to a patient’s treating psychologist, or voluntary disclosure to the evaluating psychologist of some of a patient’s mental health records, does not constitute a full and general waiver for all mental health records.[8]
  • Waiver of privilege by a patient in a Rule 35 examination is limited to the information voluntarily disclosed to the examiner either directly by the patient or by a treating psychologist with the patient’s specific and express permission.[9]
  • In the absence of a court order compelling disclosure of privileged information, a patient may exercise privilege and withhold access to the information, even under Rule 35.[10]

Culbertson II is a closely argued 60-page ruling. It reviews the current state of the law in a variety of states and balances the interests of parents and children. It preserves an incentive for individuals to get the treatment they need and to be completely forthcoming to their therapists. It stops one parent from using the mere fact of counseling as a weapon against the other. It protects an individual’s privacy unless there is no alternative and discourages the other parent from going on a discovery “fishing trip.” It is fair, and it does not permit a therapist or counselor to promise complete confidentiality, only to be forced to break this promise, often many years later. Moreover, where there is actual danger to a child from a parent, real protections for the child are already in place.

By way of background, there is an absolute client-psychotherapist privilege under federal law.[11] This privilege applies to confidential communications made to licensed psychiatrists, psychologists and social workers in the course of psychotherapy.[12] Generally, mental health records must be protected from discovery in federal law, pursuant to psychotherapist-patient privilege, unless it can be shown that the patient had no reasonable expectation that the communication would remain private.[13] As the U.S. Supreme Court noted, effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. A psychiatrist’s ability to help her patients “is completely dependent upon [the patients’] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ..., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment.”[14]

States, however, may apply their own standards, which range from fairly open access to mental health records to a protective approach. The Court of Appeals in Culbertson II undertook a wide-ranging analysis of other states’ laws because there was little Tennessee case law on point.

As the many cases across the country at both the federal and state levels reveal, the law needs to balance a wide range of considerations, including privilege, the privacy interests of parents and children, the need to ensure necessary diagnosis and treatment of mental illness, the principle of not violating confidences retroactively, the need to ensure that a judge hearing a case is not tainted by evidence that is ultimately found inadmissible and the fact that information sought often is available by other means. While reasonable people can differ as to exactly where the trade-offs might be, the Court of Appeals in Culbertson appears to have got that balance just right.

Confidentiality of communications regarding mental health issues is specifically addressed in a number of Tennessee statutes, all of which provide protection when there are allegations of child or adult abuse. With that exception, our statutes are and long have been protective of privilege.

Tenn. Code. Ann. §24-1-207 provides that communications between a patient and a psychiatrist in connection with a therapeutic counseling relationship are privileged and may not be revealed without the patient’s consent except (1) in proceedings in which the patient raises the issue of the patient’s own mental or emotional condition; (2) in court-ordered examinations where the patient was advised that communication to the psychiatrist would not be privileged; or (3) in involuntary committal proceedings under title 33, chapter 6, parts 4 or 5. A further exception, at the discretion of the psychiatrist, is provided where the patient has made an actual threat to physically harm an identified victim and the psychiatrist has made a clinical judgment that the patient has the apparent ability to commit such an act and that it is more likely than not that this will happen in the near future. Tenn. Code. Ann. §37-1-411 removes privilege and permits testimony about harm or cause of harm to a child in a dependency and neglect proceeding or a criminal prosecution for severe child abuse.

Tenn. Code. Ann. §63-7-115 provides that the exact same provisions apply to a registered nurse certified and practicing in psychiatric and mental health nursing, with a specific exception for mandatory child abuse reports or mandatory adult abuse reports.

Tenn. Code. Ann. §63-11-213 provides that the confidential relations and communications between a licensed psychologist, psychological examiner, senior psychological examiner or certified psychological assistant on the one hand, and a client on the other, are to be on the same basis as attorney-client privilege. Again, the child abuse protections of Tenn. Code. Ann. §37-1-411 apply. Tenn. Code. Ann. §63-29-109 extends the same privilege to communications with licensed social workers, and Tenn. Code. Ann. § 63-22-114 extends it to communications with licensed marital and family therapists, licensed professional counselors and certified clinical pastoral therapists (again with exception for mandatory child abuse reports). In turn, Tenn. Code. Ann. §23-3-105 provides that, “No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person’s injury.” Attorney communications to clients are protected to the extent that they were based on the client’s confidential communications or would otherwise, if disclosed, reveal the nature of a confidential communication.[15]

In all cases, Tenn. Code. Ann. §37-1-614 removes “the privileged quality of communication” between any professional person and that person’s client (except for attorney-client privilege) in any case of known or suspected child sexual abuse.

Notwithstanding these protections, objections to the Culbertson decisions flow from the supposed inability they impose on a court’s ability to assess the “moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child.”[16] This is different from protecting a child from imminent harm from an openly dangerous parent. The protections cited above protect the children in such cases. The question posed by Culbertson is how much further courts may go when there is no clear and present danger of imminent harm. It is well established in Tennessee that allegations alone concerning a parent’s mental health and/or his defense against those allegations is not enough to place his or her mental condition in controversy. Cases going back at least as far as Odom v. Odom[17] make clear that more is required, at least in a custody context. If any claim for custody or defenses against them were sufficient to raise the issue, mental health records of parents could conceivably be required in every case involving children, presumably along with church attendance records, medical records, dating history, records of dietary preferences and even gym attendance records, for how else can the trial court assess the moral, physical, mental and emotional fitness of each parent? In fact, the trial court can determine how well each parent functions without seeking information that has traditionally been privileged, by assessing the actions of each parent and, when necessary (and as was done in this case) ordering a Rule 35 examination.

The Rule 35 examination in this case is instructive, in part because the Court of Appeals called into question Ms. Culbertson’s motivation in seeking further records. It was Ms. Culbertson who requested the examination. The examiner had administered a variety of tests to the parties and conducted interviews. It was only after the examiner issued a report and recommendations that Mr. Culbertson be afforded unsupervised and uninterrupted visitation with the children on a graduated basis that Ms. Culbertson sought his detailed psychological records. Ms. Culbertson was not foreclosed from bringing her husband’s current mental state and actions to the trial court’s attention. She only needed to present the court with proof of his current behavior and state of mind plus expert opinion on the impact on the parties’ children. Instead, Ms. Culbertson wanted to go back into history and/or outside the scope of the already-completed Rule 35 examination and present to the court statements that Mr. Culbertson had made to his treating mental health professionals. She wanted to retroactively expose confidences he had shared, confidences that were intended to support his recovery, and use them against him. Her justification was “protecting the best interest of the children.”

The action of the legislature in 2013 in passing a law [now found in Tenn. Code. Ann. §36-6-106(a)(8)] that allowed the trial court to order a Rule 35 examination and order the disclosure of records under specified circumstances pursuant to Tenn. Code. Ann. §33-3-105(3) when necessary for the conduct of the proceedings, does not broaden access to mental health records. As the Court of Appeals noted, this amendment came after the records request in Culbertson. Even if it had not, the Attorney General in Op. No. 14-55[18] suggested that this reference applied only to sevices applied for, provided under or regulated under Title 33; i.e., to persons who are mentally ill or intellectually disabled in the care and custody of the state.

Culbertson II does not leave any question as to the proper subject of an in camera review of mental health records. Review is limited to material that is within the scope of the patient’s waiver. If the records fall outside the scope of waiver, they cannot be considered by the trial court; if they fall within the waiver, the trial court will be able to consider them against the usual standards of relevance and materiality.[19] The in camera review is not to be used for the general purpose of conducting a comparative fitness analysis.[20] 

Finally, a party does not really have the scope to “cherry-pick” the records that are furnished to Rule 35 examiners. A party would not have an ability to omit the identity of any mental health professionals whom he or she consulted, since the court has made clear that the identification of such professionals does not implicate privilege — it is only the substance of the communications themselves that are privileged. Similarly, the professional’s observations, diagnoses or treatment recommendations are not privileged. Should the examiner, as a result of his or her own evaluation, seek additional information that is then withheld on the grounds of privilege, the examiner can — and typically will — note that the analysis may be unreliable for that very reason. The trial court can weigh this in its custody determination.

The Court of Appeals found that Mr. Culbertson did not waive a broad psychologist-client privilege because he declared that he was currently mentally stable, because he relied on the Rule 35 examination that he was currently in a position to resume regular visits with his children on a graduated basis and because the examination reflected, in some part, reports from his treating psychologists. What the Court of Appeals said was that to the extent that Mr. Culbertson voluntarily provided information, privilege was indeed waived, but that the waiver would not extend to where he did not himself or authorize others to release such information. This is straightforward and hardly confusing.

The cost of narrowing the privilege would be excessive. One issue is judicial taint, i.e., how do you put the genie back in the bottle? In Ford v. Ford,[21] the trial court had reviewed the mother’s mental health records prepared by a licensed clinical psychologist and removed custody from her. The trial court initially, and correctly, determined that the records were not properly admissible but went on to say that the information helped the court make a decision. It would have been difficult for the court not to have been influenced by what it read. The Court of Appeals restored custody to the mother.

A second problem involves discouragement to obtaining necessary treatment. Most attorneys must have confronted a similar problem. Can you advise a client to pursue necessary counseling if this means that one day the confidences that the client shared will be used against him or her?

While this article was being written, a letter appeared in “Dear Abby” on March 24, 2016:

I find myself sometimes wanting to commit the most heinous of crimes. The desire to do this has been with me my entire life. I was sexually abused by my mother and oldest brother. While that’s no excuse, I understand why I may be the way I am. At 51, I have never committed any act against a young girl, but the desire is clearly there for me. The issue before me is that if I seek help for this problem, those who can provide it are required by law in this state [which is unspecified] to report me. How am I to overcome these urges when no matter what I do I am considered guilty?

Signed
Anonymous in America

Could an attorney ever send such a client for assessment, diagnosis and treatment? Can the client ever be told to be forthright when that information at some unknown time, possibly many years in the future, can and will be used against him or her?

There is no need to “resolve” the issues in Culbertson I and Culbertson II. The law is clear as it now stands, and it strikes the proper balance between the best interest of a child and that parent in establishing a custodial and parenting time arrangement. The proposal to “pierce the privilege” focuses only on digging out more information on the parent who is accused of having mental health issues. It will provide a further incentive to drag in ancient history that is not relevant to a parent’s current mental health or ability to parent. “Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”[22]

Information that is necessary to make custodial and parenting time determinations based on current facts is already available through Rule 35 examinations that focus on the mental health of a party today. The privilege statutes already protect children from abuse. In camera reviews are always going to be problematic, because of the risk of taint. A negative inference to be drawn when someone refuses to waive a mental health record privilege would serve to neutralize the purpose of the privilege. Furthermore, allowing a negative inference when there is independent corroborating evidence of abuse, violence or mental instability is completely unnecessary — such evidence, by itself, is sufficient to restrict parenting time without involving the results of mental health treatment.

The law is appropriate as it stands, and it is clear no change is needed.

Notes

  1. Tuetken v. Tuetken, 320 S.W.3d 262, 271 (Tenn. 2010).
  2. 393 S.W.3d 678 (Tenn. App. 2012) (Perm. App. Den. Sept. 26, 2012).
  3. 455 S.W.3d 107 (Tenn. App. 2014) (Perm. App. Den. Oct. 17, 2014). Judge Farmer, who had written the opinion in Culbertson I, joined in Culbertson II, which was written by Judge (now Justice) Kirby.
  4. Id., at 152-53.
  5. Id., at 151.
  6. Id., at 137.
  7. Id., at 139-40.
  8. Id., at 149.
  9. Id.,150.
  10. Id., at 149.
  11. Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 337.
  12. Green v. St. Vincent’s Medical Center, 252 F.R.D. 125, 127 (D. Conn. 2008).
  13. Estate of Turnbow v. Ogden City, 254 F.R.D. 434, 437 (D. Utah 2008).
  14. Jaffee v. Redmond, 518 U.S. 1, at 10-11 (citations omitted).
  15. State v. Buford, 216 S.W.3d 323, 326. (Tenn. 2007).
  16. Tenn. Code Ann. §36-6-108(a).
  17. Odom v. Odom, 2001 WL 1543476 (Tenn. App.)
  18. Op. No. 14-55, State of Tenn. Office of the Attorney General. (May 14, 2014).
  19. While the Attorney General had stated that a trial court may order an in camera review for comparative fitness purposes, Op. No.14-55 refers specifically to Culbertson I, which did envisage such review. Culbertson II clearly overruled that earlier holding and the portion of the opinion concerning in camera review is no longer relevant.
  20. Culbertson II, at 155-56.
  21. Ford v. Ford, 1990 WL 107492 (Tenn. App.).
  22. Jaffee v Redmond, 518 U.S. 1, 18. (1996).

Jeffery L. Levy

JEFFREY L. LEVY is a family law practitioner in Nashville. A graduate of Vanderbilt University Law School, he is a past chair of the Tennessee Bar Association’s Family Law Section and of the Nashville Bar Association’s Domestic Relations Committee. He has also served for the past several years as chair of the TBA’s Family Law Committee.