Appeals Judge Decries What He Sees As Erosion Of Legal Shield For Confidences To Psychiatrists

the Florida Phoenix

By Michael Moline

December 16, 2020

A state appeals judge, in a case arising from a custody dispute, has complained that mental health records are being used against people in court even though a state law is supposed to forbid that.

Judge Adam Tanenbaum of the 1st District Court of Appeal condemned rulings that he said improperly introduced the idea that people could involuntarily lose that protection if there’s a “calamitous event” such as a suicide attempt.

“I categorically reject the idea that someone could ‘waive’ the psychotherapist-patient privilege in a custody dispute simply by voluntarily seeking personal mental health care through a professional relationship protected as a substantive right established by the Legislature. It is for the Legislature, not the courts, to add this ‘waiver’ as an exception to the privilege,” Tanenbaum wrote.

The judge’s qualms availed nothing for the mother in this case, however: Tanenbaum agreed with two other 1st DCA judges that the woman’s lawyer had turned over her psychiatric records to the trial judge in hopes of rebutting her husband’s arguments that she was too unstable to merit custody.

Although they are contained in the court record, the Phoenix has decided against identifying the parents on its platform to protect their privacy.

According to Tanenbaum’s nine-page concurring opinion, released Monday, the woman voluntarily committed herself to a psychiatric hospital while the custody dispute was pending. The husband asked the trial judge to consider the records and the wife’s lawyer agreed to let the judge review all 416 pages. Additionally, her counselor testified on her behalf.

Section 90.503 of the Florida Evidence Code establishes the psychotherapist-patient privilege. As with the attorney-client privilege, the idea is to encourage people to be frank with their counselors without risk that their confidences will be unduly laid out in court.

There are exceptions to the privilege for known or suspected child abuse, when a court orders the evaluation, for involuntary commitments, and when the patient raises his or her condition as a criminal defense or to bolster a civil claim, according to an analysis published by The Florida Bar.

That last exemption applies in the case, according to Tanenbaum.

“Her counsel told the trial court not only to review all of the records but also to consider them as evidence as it made its determination regarding custody,” he wrote.

“Moreover, at no point did [the woman] identify particular pages of those records that should be excluded from production on relevance grounds. She essentially asked that the trial court consider all of the records from her five-day commitment in its role as factfinder, and counsel even intimated that the records were relevant because they would rebut allegations made by [the father].

That amounted to a willful waiver of the privilege, Tanenbaum concluded.

His fellow members of a three-judge appellate panel — Ross Bilbrey and Thomas Winokur — used a single paragraph to reject the mother’s request to bar use of the material in the custody dispute. They cited precedents dating to 1977 holding that circumstances including attempted suicide and voluntary commitment effectively serve as waivers of the privilege.

“There is no authority for this approach to the privilege,” Tanenbaum insisted.

“Courts cannot add or subtract from statutory language in their opinions and expect those opinions to be treated seriously as the law. Only the Legislature has the authority to make and modify policy for Florida. A court’s role is to apply such public policy as written, subject to any constitutional limitations.”

This story was originally published by the Florida Phoenix. For more stories from the Florida Phoenix, visit FloridaPhoenix.com.