Monday, April 27, 2009
The Iowa Supreme Court recently held that a parent’s statutory right to access to her child’s mental health records could be limited by the child’s best interest. In that case, Mother had pled guilty to assaulting one of the children and, after custody was transferred to Father and Mother was denied further contact until 2012, Mother sought the mental health records of the children from the social worker who had been their therapist prior to the custody modification. The court held that Iowa statues prohibited licensed social workers from disclosing information acquired from a client without his or her consent. In interpreting that statute, the court found that “the legislature did not exclude minors from the physician-patient privileges established under [the act].” While the court acknowledged that parents normally can consent to the release of their child's mental health records,” and that Iowa statutes appear to provide parents a right to these records, the court found that neither the statutes nor the common law “does not give either parent an absolute right to those records. . . . the best interests of the child always prevail. … Similarly, the rights given to parents under [the Iowa code] are tempered by the overriding principle that when dealing with a matter concerning a child whose custody was determined by a court decree in a dissolution-of-marriage action, the first and governing consideration a court must apply is the best interest of the child.”
The court agreed that the release of the records was not in the children’s best interests.
Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson and Sanger, L.L.P., Iowa , No. 08-0475, 4/17/09). (last visited April 27, 2009) bgf
In the continuing battle over the role of psychological experts in custody actions, courts have been called upon to examine the balance between the broad scope of discovery in these actions and the right of privacy in mental health records. In a case in which a Father sought Mother's mental health records in order to support his claim for modification of custody, the Pennsylvania Superior Court held that, even though a court has statutory authority to order a parent to submit to a mental health evaluation does not mean that it may require the parent to disclose existing privileged mental health records. While the court did not find these records to be covered by physician/patient privilege because the records were not confined to communications for the purposes of treatment, the court did find that the broader privacy provisions of the state Mental Health Procedures Act did cover the records. Moreover, the court concluded that “less intrusive means exist for the trial court to make a determination as to Mother's suitability as a custodial parent, rather than releasing Mother's privileged mental-health records … and vitiating her statutory right of confidentiality.”
Gates v. Gates, 2009 Pa Super 40 (March 10, 2009) (last visited April 27, 2009 bgf)