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Mental Health Professions in Dissolution

Dissolution of Marriage, or Divorce litigation is widespread in Florida and often involves mental health professionals (MHP's). Problems with MPHs may occur and often do when the MHP discloses information without consent, refuses to disclose information when it is required, or obtains consent from the incorrect patient.

Disclosures of mental health records to the legal system are easily confused with disclosures to other parties because they have overlapping distinct rules. Privilege requests are governed by FS 90.503, regulating profession and case law. Some people are not permitted to testify, a privilege, because legislatures have decided that some relationships are more important to protect than whatever their testimony may be. Privileges, however, are not unconditional; legislatures have enacted exceptions to privilege, and in some circumstances void the privilege, these are called waivers.

In determining whether privilege applies, the court should follow strict construction of the statute. There is a presumption of no privilege unless all of the necessary conditions are met. Once privilege is established, the next analysis is to determine whether any exceptions to privilege apply; the Florida statutes have four exceptions (read the statute for more information and detail).

With privilege comes a prima facie case for protection. The party requesting the records must prove that the privilege has been waived. The court uses a balancing test to determine if privilege is waived; they balance the privacy rights of the patient, the governments' police power, the best interest of the child, the court's need for information, etc.

A child's right to assert privilege depends on state laws. In Atty. Ad Litem for D.K. v. Parents of D.K., 780 So.2d 301(Fla. 4th DCA 2001), the court upheld a minor's independent privacy over her parents'. In determining a minor's independent rights the court may look to the child's age, intelligence, and maturity, the child's intensity of preference, and the existence of undesirable or improper influence. The court may also consider the child's needs, desire, cognitive capacity, and perception of fairness, as well as parental concerns, the particular presenting problems, state statues, the effect on the therapy, and respect for the minor's constitutional rights.

MHP's are now becoming Florida Supreme Court Certified Mediators, and this is a benefit for divorcing families, especially with young children. These MHP's can assist the parties in determining what may be right for a child of a particular age, and other essential emotional issues that arise with children in divorcing families. MHP's can be hired as "neutrals" (like in the collaborative practice" which means there is no privacy, everything is transparent, they are just facilitators to the divorcing process, and they do not provide individual counseling to the parties during or after the divorce, they are part of the "divorcing team" and try to mitigate the emotional issues that can cause an otherwise "simple": dissolution to derail.

For more information on how a Mental Health Professional can assist you and your family during the stressful time of a dissolution/divorce, please contact the attorney's at Camy B. Schwam-Wilcox, P.A. at office@cbswlaw.com or 407-245-7700

 

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