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December 06, 2006
Children's Therapy Records Privileged
The subject of the patient-therapist privilege often comes up in divorce cases. Many times this involves children who are in therapy or counseling to help them deal with issues created as a result of their parent's divorce. A recent trial court ruling in Polk County (Iowa) District Court addressed the issue of whether the children's therapist could maintain the confidentiality of these sessions despite a subpoena served on the therapist for the records. The court's ruling held that parents do not have the absolute right to waive the therapist/client privilege on behalf of their children.
The controversy arose when, in a modification proceeding, the non-custodial mother attempted to subpoena both the therapist and his counseling records regarding her children. The therapist asserted that the records were privileged pursuant to Iowa Code § 622.10(1) and refused to turn over the records or appear for the deposition. The mother then sought to have the therapist held in contempt for failing to appear for the deposition and failing to provide the counseling records pursuant to the subpoena. The Court adopted the reasoning set forth in Berg v. Berg, 886 A.2d 980, 986-87 (N.H. 2005), in which the New Hampshire Court held that, "the weight of authority…supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with those of their natural guardians." The Court then held that courts have the authority and discretion to determine whether the attempted assertion or waiver of the privilege on behalf of a child is in the child's best interests. As in Berg, the Iowa trial court concluded that preservation of the privilege is essential in preserving the children's effective access to therapy. The particular outcome of this case relates to a very specific set of circumstances and facts that will be different in every case.
As post-trial motions are pending, including a request by the mother for the court to reconsider this particular ruling, it remains to be seen whether the ruling will be appealed. A copy of the ruling is available here in PDF format thanks to Lora McCollom, the therapist's attorney.
Posted on December 06, 2006 in Custody | Permalink
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Main
| Securing property judgments - In re Marriage of Keener »
December 06, 2006
Children's Therapy Records Privileged
The subject of the patient-therapist privilege often comes up in divorce cases. Many times this involves children who are in therapy or counseling to help them deal with issues created as a result of their parent's divorce. A recent trial court ruling in Polk County (Iowa) District Court addressed the issue of whether the children's therapist could maintain the confidentiality of these sessions despite a subpoena served on the therapist for the records. The court's ruling held that parents do not have the absolute right to waive the therapist/client privilege on behalf of their children.
The controversy arose when, in a modification proceeding, the non-custodial mother attempted to subpoena both the therapist and his counseling records regarding her children. The therapist asserted that the records were privileged pursuant to Iowa Code § 622.10(1) and refused to turn over the records or appear for the deposition. The mother then sought to have the therapist held in contempt for failing to appear for the deposition and failing to provide the counseling records pursuant to the subpoena. The Court adopted the reasoning set forth in Berg v. Berg, 886 A.2d 980, 986-87 (N.H. 2005), in which the New Hampshire Court held that, "the weight of authority…supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with those of their natural guardians." The Court then held that courts have the authority and discretion to determine whether the attempted assertion or waiver of the privilege on behalf of a child is in the child's best interests. As in Berg, the Iowa trial court concluded that preservation of the privilege is essential in preserving the children's effective access to therapy. The particular outcome of this case relates to a very specific set of circumstances and facts that will be different in every case.
As post-trial motions are pending, including a request by the mother for the court to reconsider this particular ruling, it remains to be seen whether the ruling will be appealed. A copy of the ruling is available here in PDF format thanks to Lora McCollom, the therapist's attorney.
Posted on December 06, 2006 in Custody | Permalink
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