Within the first few days of my filing for divorce, my attorney wanted to speak to my therapist just to get a sense of what kind of person I am. Not long after that, the guardian ad litem in my case insisted that I sign a release giving her permission to speak to my therapist, and subsequently the custody evaluator asked for a release as well.
The information which my therapist provided to these people played a major role in directing the outcome of my divorce for better and for worse.
My guess is that if anyone knew the extent to which psychiatric records could be used against them in a court of law, no one would ever see a therapist, or at least, no one would ever let it be known that they see a therapist. Calling into question your mental health is one of the primary weapons attorney's use in family court.
So what can you do about this?
The first thing to keep in mind is the fact that you have a statutory right to confidentiality in regard to your private mental health records based upon CT General Statutes Section 52-146e and Rule 501 of the Federal Rules of Evidence, both of which protect the confidentiality of communications between a patient and her psychiatrist. This is a privilege that is generally considered to be so important that it is recognized in all of the fifty states including the District of Columbia.
This was affirmed in Jaffee v. Redmond 518, U.S. 1 (1996) where the court stated, "the psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendant importance."
Fundamental to the treatment of mental illness is the understanding that it is based upon confidentaility. Thus, in Jaffee v. Redmond the court stated, "Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment.
Despite these protections, there are times when an opposing attorney can obtain copies of your mental health records if the court rules that the value of disclosing such information is in the interests of justice. Still, in Jaffee v. Redmond the court recommended that this exception be very limited stating, "Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege."
If there were a situation where there appeared to be compelling reasons to allow disclosure of private medical records, the likelihood is that the judge would first review the records in camera (in his chambers) in advance to see whether the records had any evidentiary value in the case. If they didn't, then the disclosure of the material would not be allowed. Of course, just having the judge who makes the final decision reviewing the material could be prejudicial against your case, particularly since most judges aren't mental health experts and could misinterpret the contents.
What you need to take away from this discussion is simply that if the opposing attorney asks you to give him copies of your medical records, you are absolutely not required to agree to do so. In fact, the law supports you in refusing. If the opposing attorney demands you turn them over, you can simply file a motion for a protective order. This cannot protect you, however, from a whisper campaign that calls into question your mental health without any evidence to base it on. That is a much tougher task to handle. But to start with, you have the law on your side if you wish to keep your medical records private during divorce proceedings.
Another point I'd like to make is that if you have a therapist you can trust, if that therapist is loyal to you, he or she can simply refuse to provide any information to the court or to any attorney despite any court orders or requests. Many therapists have taken just this stand. Before you get into your divorce, or as early on as you can find out, establish an agreement with your therapist as to what will happen should this situation arise. At least that way you will know where you stand.
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