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The family law, divorce and child custody attorneys/lawyers at Holmes, Diggs, Eames & Puhl with locations in McKinney, Denton, Houston and Dallas, Texas will be sensitive and diligent in representing you during tough child custody times. We have extensive experience in handling divorces, claims for alimony, litigating child support and child custody issues, and mediation.
An expert child custody, family law and divorce lawyer/attorney located in Dallas, Houston or Denton, Texas can assist in negotiating and developing comprehensive custody settlement agreements, providing references to mediation experts, and formalizing agreements reached as a result of litigation or mediation.
Our child custody, divorce and family law attorneys/lawyers would like to point out that custody decisions will affect your family life after divorce for a long time, so it is in yours and your child’s best interests to understand your legal rights and obligations.
General Privilege of a Mental Health Record
There are general guidelines for the protection of a mental health record outside of a court proceeding. For a mental health record to be protected, there must be a professional-patient relationship. There are specific provisions in section 611.001 of the Texas Health and Safety Code defining this relationship.
A "patient" is defined as a person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction. A "professional" is defined as (A) a person authorized to practice medicine in any state or nation; (B) a person licensed or certified by Texas to diagnose, evaluate, or treat any mental or emotional condition or disorder; or (C) a person the patient reasonably believes is authorized, licensed, or certified.
Confidentiality - The Privilege
Once the patient-professional relationship is established, the mental health records privilege set out in section 611.002 of the Health and Safety Code serves to protect those records created in the course of that relationship. The law provides broadly that communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential. Confidential communications or records may not be disclosed except under limited circumstances described in this article. The privilege applies regardless of when the patient received services from a professional. There is no specific time frame as to when the privilege expires, arguably it exists forever.
Who May Claim the General Privilege
Section 611.003 of the Health and Safety Code sets forth the individuals that may claim the privilege. The privilege of confidentiality may be claimed by:
The authority of a professional to claim the privilege of confidentiality on behalf of the patient is presumed in the absence of evidence to the contrary.
Authorized Disclosure of Confidential Information
Outside of a Court or Administrative Proceeding
Section 611.004 of the Health and Safety Code sets forth the rules for the disclosure of confidential information by a professional concerning a matter that is not a court or administrative proceeding. A professional may disclose confidential information only to:
A person who receives confidential information as a qualified person for management audits, financial audits, program evaluations, or research may not directly or indirectly identify or otherwise disclose the identity of a patient in a report or in any other manner. The exception for an official legislative inquiry relating to a state hospital or state school applies only to records created by the state hospital or state school or by the employees of the hospital or school.
Information or records that identify a patient may be released only with the patient's proper consent. A person who receives information from confidential communications or records may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the person first obtained the information. This does not apply to: 1) a person who has the written consent of the patient, 2) a parent who is acting on the patient's behalf if the patient is a minor, 3) a guardian who is acting on the patient's behalf if the patient has been adjudicated as incompetent to manage the patient's personal affairs or, 4) the patient's personal representative who is acting on the patient's behalf if the patient is deceased.
Patient's Revocation of Consent to Release Records
Pursuant to Health and Safety Code section 611.007, a patient may revoke a consent to release his or her records. Except as provided hereinbelow, a patient or a patient's legally authorized representative may revoke a disclosure consent to a professional at any time. A revocation is valid only if it is written, dated, and signed by the patient or legally authorized representative. However, a patient may not revoke a disclosure that is required for purposes of making payment to the professional for mental health care services provided to the patient. Further, a patient may not maintain an action against a professional for a disclosure made by the professional in good faith reliance on an authorization if the professional did not have notice of the revocation of the consent.
Patient's Right to Records
Section 161.0045 of the Health and Safety Code governs the right of a patient or other person to request and review the patient's mental health records. A patient is entitled to have access to the content of a confidential record made about the patient. Notwithstanding Section 5.08, Medical Practice Act, section 161.0045 of the Health and Safety Code applies to the release of a confidential record created or maintained by a professional, including a physician, that relates to the diagnosis, evaluation, or treatment of a mental or emotional condition or disorder, including alcoholism or drug addiction.
Denial of Request for Records
The patient's right to records is not unfettered. There are occasions when a mental health professional should deny a patient access to a record when such disclosure could be harmful to the patient. A professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient's physical, mental, or emotional health. If the professional denies access to any portion of a record, the professional must give the patient a signed and dated written statement that having access to the record would be harmful to the patient's physical, mental, or emotional health and must include a copy of the written statement in the patient's records. The statement must specify the portion of the record to which access is denied, the reason for denial, and the duration of the denial.
If a mental health professional denies a patient his or her record because the professional believes such disclosure would be harmful to the patient, the law places further duties on that professional to complete a re-evaluation. A professional who denies access to a portion of a record must redetermine the necessity for the denial at each time a request for the denied portion is made. If the professional again denies access, the professional must notify the patient and document the denial. If a professional denies access to a portion of a confidential record, the professional must allow examination and copying of the record by another professional if the patient selects the professional to treat the patient for the same or a related condition as the professional denying access.
Release of Records to Other Persons
The content of a confidential record must be made available to:
Content of Record
The professional is required to delete confidential information about another person who has not consented to the release, but may not delete information relating to the patient that another person has provided, the identity of the person responsible for that information, or the identity of any person who provided information that resulted in the patient's commitment.
If a summary or narrative of a confidential record is requested by the patient or other person requesting release, the professional must prepare the summary or narrative. The professional or other entity that has possession or control of the record must grant access to any portion of the record to which access is not specifically denied within a reasonable time and may charge a reasonable fee.
Patient's Request to Review Records
Texas Health and Safety Code section 161.008 sets forth the procedure that a professional should follow when a patient requests a mental health record. On receipt of a written request from a patient to examine or copy all or part of the patient's recorded mental health care information, a professional, as promptly as required under the circumstances but not later than the 15th day after the date of receiving the request, must:
Unless provided for by other state law, the professional may charge a reasonable fee for retrieving or copying mental health care information and is not required to permit examination or copying until the fee is paid unless there is a medical emergency. A professional may not charge a fee for copying mental health care information to the extent the fee is prohibited under Subchapter M, Chapter 161 of the Health and Safety Code.
Legal Remedies for Improper Disclosure of a Record
Texas Health and Safety Code section 611.005 sets forth the legal remedies a patient may pursue against a professional for the improper disclosure of a mental health record. Professionals should be extremely careful when disclosing a confidential record or when refusing access to a record to a patient. A person aggrieved by an improper disclosure of or failure to disclose confidential communications or records in violation of Chapter 611 of the Health and Safety Code may petition a district court of the county in which the person resides for appropriate relief, including injunctive relief. The person may petition a district court of Travis County if the person is not a Texas resident. In a suit contesting the denial of access under Section 611.0045 of the Health and Safety Code, the burden of proving that the denial was proper is on the professional who denied the access. An aggrieved person also has a civil cause of action for damages.
Case Law
In Abrams v. Jones, 2000 WL 890385 (Tex.), the Texas Supreme Court addressed the issue of a whether a divorced parent has unfettered access to his child's mental health records when the professional denies the parent access to such records. In this context, the request for the mental health records came outside of a court proceeding.
Donald and Rosemary Jones were divorced and were appointed joint managing conservators of their daughter Karissa. Karissa's psychologist was Dr. Laurence Abrams. At the beginning of Abram's conversations with Karissa, the child expressed her reluctance to speak with him because she feared her parents would discover what she told Dr. Abrams. Abrams and Karissa then reached an understanding that Abrams would only give the parents a general description of their discussions without going into specifics. Abrams was able to establish a rapport with Karissa because there would be certain topics he would not divulge to the parents. Shortly after Karissa visited with Abrams, Donald and his counsel requested that Abrams release all of her records. Abrams gave Donald a verbal summary of information including the basic subject matter of his conversations with Karissa. It was eventually discovered that Rosemary had initially taken Karissa to Abrams "to get a leg up" on Donald in court. Donald again requested Karissa's records and Abrams responded verbally and in writing that releasing his detailed notes about his conversations with Karissa would not be in her best interest. Abrams offered to give his notes to any other psychologist of Donald's choice to replace him as psychologist for Karrisa so that the new psychologist could determine if releasing the notes would be in her best interest. Donald did not choose a new psychologist and Abrams did not release his notes. Donald sued to have Abrams' notes released to him.
Justice Owen's majority opinion addressed three major issues: 1) whether the Family Code gives a divorced parent greater access to a child's mental health records than any other parent, 2) whether the Health and Safety Code allows a professional to deny a parent access to portions of a child's mental health record if the professional concludes that their release would harm the child, and 3) whether a parent is always deemed to be acting on behalf of his or her child when requesting mental health records.
Section 153.073 of the Family Code provides that a parent who is appointed conservator "has at all times the right of access to medical, dental, psychological and educational records of a child. Donald contended that such statute gave him the absolute right to Karissa's records. The Court disagreed. They interpreted the Family Code section to ensure that a parent who is divorced and has been appointed conservator have the same rights to his child's records as any other parent. In other words, the Family Code section did not trump the Health and Safety Code provisions for release of records. The Court reasoned that "The Legislature did not intend to give greater rights to divorced parents than to parents who are not divorced."
The Court next addressed Donald's contention that he had an absolute right under the Health and Safety Code to see all of Karissa's records. The Court again disagreed with Donald. Section 611.0045 of the Health and Safety Code explicitly provides that a professional may deny access to records if such release would be harmful to the patient. In this case, the majority of evidence from Dr. Abrams supported the conclusion that disclosure would harm the child. The Court reasoned that as a parent requesting the records, Donald stepped into the shoes of Karissa so as to allow Dr. Abrams to determine if a disclosure would be harmful to Karissa.
The Health and Safety Code provides that a parent should have access to the content of a confidential record if the parent is acting on behalf of the child. Donald contended that as a parent, he was necessarily acting on his child's behalf. The Court disagreed stating "Parents cannot always be deemed to be acting on a child's behalf. An obvious example is when a parent has sexually molested a child and later demands access to the child's mental health records. Similarly, parents embroiled in a divorce or other suit affecting the parent-child relationship may have motives of their own for seeking the mental health records of the child and may not be acting on the child's behalf." The Court further reasoned: "Although a parent's responsibilities with respect to his or her child necessitate access to information about the child, if the absence of confidentiality prevents communications between a therapist and the patient because the patient fears that such communications may be revealed to their detriment, neither the purposes of confidentiality nor the needs of the parent are served." If a professional denies access to records, then the parent has recourse through the Health and Safety laws to attempt to obtain the record through court approval.
Authorized Disclosure of a Mental Health Record
in a Civil or Administrative Proceeding
Texas Health and Safety Code section 611.006 governs authorized disclosure of mental health records in court or administrative proceedings. This statute, however, must be read in conjunction with Rule 510 of the Texas Rules of Civil Evidence which is explored hereinbelow. Generally, pursuant to the Health and Safety Code, a professional may disclose confidential information in:
On granting an order requiring a professional to produce a mental health record, a court, in determining the extent to which disclosure of all or any part of a communication is necessary, must impose appropriate safeguards against unauthorized disclosure.
Definitions for Use of a Mental Health Record in a Custody Case
For mental health records to be protected in a family law case, they must fall within the specific definitions set forth by the rules of evidence. Only records of a "professional" are protected. The definitions for protection of a mental health record in a child custody proceeding are substantially similar to those concerning the general privilege. A "professional" is defined as any person: (A) authorized to practice medicine in any state or nation; (B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder; (C) involved in the treatment or examination of drug abusers; or (D) reasonably believed by the patient to be included in any of the preceding categories. A "patient" is defined as any person who: (A) consults, or is interviewed by, a professional for purposes of diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or (B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.
A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis, examination, evaluation, or treatment under the direction of the professional, including members of the patient's family
Privilege
Rule 510 of the Texas Rules of Evidence makes an individual's mental health records privileged and not discoverable during litigation. The privilege is defined broadly and includes communications between a patient and professional and records created or maintained by the professional. The privilege operates to protect such records from discovery during litigation to protect the privacy of the individual. The rationale for the privilege is twofold: (1) to encourage the full communication necessary for effective treatment and (2) to prevent unnecessary disclosure of highly personal information.
Rule 510(b) of the Texas Rules of Evidence generally sets out the privilege rule. It states that a communication between a patient and a professional is confidential and may not be disclosed in child custody case. Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and also may not be disclosed in a child custody case. Any person who received information from confidential communications or records, other than a representative of the patient acting on the patient's behalf, may not disclose in civil cases the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
Until recently, exceptions to the privilege made most mental health records discoverable if they were relevant to the issues in a child-related suit.
Who may claim the privilege
Rule 510(c) of the Texas Rules of Civil Evidence provides that the privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf. The professional may claim the privilege of confidentiality but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary. If the patient has not expressly consented to the release of records or confidential communications, the professional should not release such records or communications absent a court order. If the patient expressly waives the privilege, the professional should produce the records for use in the court proceedings.
Exceptions to the Privilege
Effective March 1, 1998, the Supreme Court and Court of Criminal Appeals eliminated the parent-child exception to the physician/patient and mental health privileges (formerly Tex. R. Civ. Evid. 509(d)6) and 510(d)(6). Previously, there was no privilege if mental health information was relevant in a suit affecting the parent-child relationship. "Relevant evidence" is evidence having any tendency to make the existence of any fact of consequence either more or less probable than it would be without the evidence. Tex. R. Civ. Evid. 401.
The remaining exception to the privilege is set out in 510(d)(5). It states that an exception to the confidentiality of mental health information exists as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as part of the party's claim or defense.
Case Law
RK. v. Ramirez, 887 S.W.2d 836 (Tex. 1994)
RK. v. Ramirez addresses the scope of the exception found in Rule 510(d)(5) of the Texas Rules of Evidence. The central question that must be answered in a family law case is whether the mental condition of the person, whether a party or not, is being relied on as a claim or defense in the case. In RK, the court laid out the test: The exceptions to the mental health privileges apply when (1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party's claim or defense, meaning the condition itself is a fact that carries some legal significance. Both parts of the "relevancy test" must be met before the exception will apply. The trial court is required to complete an in camera inspection to determine if the materials are privileged.
The court noted that communications and records should not be subject to discovery if the patient's condition is merely an evidentiary or intermediate issue of fact, rather than an 'ultimate' issue for a claim or defense, or if the condition is merely tangential to a claim rather than 'central' to it.
The comment to the March 1998 amendment states that the trial court must ensure that the precise need for the information is not outweighed by legitimate privacy interests protected by the privilege. The parent-child exception was adjudged to be no longer necessary because disclosure would be governed by 510(d)(5). Some fear that the amendment will make such records no longer discoverable.
The "relevancy exception", however, may permit the discovery and admission of certain medical and mental health records of parties to custody and termination cases, without also permitting the discovery and admission of the confidential records of nonparties and experts in cases. Therefore the "relevancy exception" will most likely apply to the child's parents, step-parents or custodians, members of the household where the child lives, and anyone seeking custody of the child. The "relevancy exception" will probably not extend outside those boundaries to the records of testifying experts and other nonparties who have a tangential relationship to the case.
Holmes, Diggs, Eames & Puhl