Legal Lesson - When you can overcome psychotherapist patient privilege and obtain psychological records


Pursuant to Fla. Stat. 90.503, communications between psychotherapists and patients are confidential if they are not intended to be disclosed to third persons other than those persons whose presence is necessary to further treatment, further communication regarding treatment or participating in the diagnosis and treatment. However no privilege exists for communications relevant to a proceeding to compel hospitalization of a patient for mental health conditions (ex. Baker Act Hearing); communications made in the course of a court-ordered examination of the mental or emotional condition of the patient (ex. evaluation pursuant to a court ordered psychological evaluation); and communications relevant to an issue of mental health when the patient is using the condition as a defense, or in any proceeding in which a party relies upon the condition as an element of the party’s claim or defense (ex. attempted suicide during the pendency of a custody dispute).  Fla. Stat. 61.13(2)(a) requires the trial court to consider the mental health of each parent as a factor in determining what is in the child’s best interest s it relates to timesharing.  However, seeking custody or seeking to retain custody does not in and of itself make the mental health of a parent an element of their claim or defense.


O’Neill v. O’Neill, 823 So.2d 837 (Fla. 5th DCA 2002)

    • Father filed emergency motion to modify child custody alleging that the mother suffered from alcohol and drug addiction and was admitted to a residential treatment facility earlier in the year.
    • Father sought to obtain the psychological records of the mother from the treatment facility.
    • Mother objected based upon psychotherapist privilege and sought a protective order of those records.
    • Appellate court held that no privilege existed because the wife had threatened to take her own life and the life of the children, which were serious enough for her friend to drive her to a treatment facility.
    • Court held that such statements by the wife, when joined by the supporting behavior constitute a calamitous event that supports an implicit waiver of the statutory privilege.

Full Document Can Be Obtained From Here.

By Kenny Leigh

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