Mental Health Privilege & Maryland Divorce

by | Jul 10, 2024

Divorcing and separating couples often seek mental health services – counseling & therapy – for themselves (individually or as a couple), their children, and/or their family.  The confidentiality of therapy invites sharing information in a safe, contained space.  So a person can be honest with themselves, and any other participants.

During contested family litigation, important decisions need to be made about one’s mental health privileges and whether mental health providers can testify and/or produce their records.  This blog series discusses the laws that apply & what they look like in action when it comes to mental health privilege in contested family litigation (such as divorce and custody).


What is a Mental Health Privilege?

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential. In action, this means that privileged information cannot be used in contested litigation unless the privilege is waived.  Waiver means opening the door to others on confidential communications and information.

A privilege may be created by rule, statute, or case law.  And, privileges created by rule or statute are often developed by case law interpreting them.

Maryland has 3 statutes that create mental health privileges:

  1. 9-109 Patient-therapist privilege*
  2. 9-109.1 Communications between client and psychiatric-mental health nursing specialist*
  3. 9-121 Social worker-client communications*

 

When I think about privilege, I start with the licensure of the provider.  Then I look for the statute that applies to that type of license.  Sometimes, providers have multiple licenses (for example, psychologist and licensed certified social worker-clinical/LCSW-S), so more than one statute applies.

There are a number of ways to check & cross-check licensure:

  • Looking up the provider online
  • Confirming licensure on Maryland State license verification websites
  • Asking the provider

Key takeaways from this introduction:

  • Privilege is confidentiality
  • Privilege waiver – or not – is a decision that requires thought in contested family litigation
  • Waiver means opening the door to outsiders to access confidential communications and information

Next up:  Who provides privileged mental health services?

*Section references to Md. Code Ann., Cts. & Jud. Proc. (2019 Rep. Vol.)


What Mental Health Providers are Privileged?

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

This blog explores “the who” – who provides privileged services.

Maryland’s 3 mental health privilege statutes* apply to the following types of providers:

  1. Licensed psychologist (§9-109(a)(2))
  2. Psychiatrist (§9-109(a)(4))
  3. Professional counselor (§9-109.1(a)(3))
  4. Psychiatric-mental health nursing specialist (§9-109.1(a)(4))
  5. Licensed certified social worker (§9-121(a)(3))

But one has to look at what’s beneath the title.

A “licensed psychologist” means someone licensed to practice psychology under the laws of Maryland.

But, the definition of “psychiatrist” doesn’t require Maryland licensure.  (And irksomely refers to someone who “devotes…his time to the practice of psychiatry”.)

To understand who is a “professional counselor”, one has to go to Health Occupations Article Title 17 for the definition of “counselor”.  Only to find that “counselor” is not generally defined (§17-101), but is an included term in the following definitions:

  • Certified professional counselor
  • Certified professional counselor – marriage and family therapist
  • Certified supervised counselor – alcohol and drug
  • Certified associate counselor – alcohol and drug
  • Certified professional counselor – alcohol and drug
  • Licensed graduate alcohol and drug counselor
  • Licensed graduate marriage and family therapist
  • Licensed graduate professional counselor

So, is §9-109.1’s privileged provider the narrower “professional counselor” or all the types of “counselor” defined in Title 17?  As with licensed psychologists, the definitions of “certified” and “licensed” in §17-101 all mean, broadly speaking, authorized by Maryland’s State Board of Professional Counselors and Therapists.

  • 9-109.1 doesn’t specify that a psychiatric-mental health nursing specialist must be licensed or certified by the State of Maryland, but:
  • Does use the term “registered nurse”, which in Health Occupations 8-101 requires either Maryland licensure or multistate licensure
  • Allows a master’s degree (with or without a baccalaureate degree)
  • Allows certification by the American Nurses’ Association or body approved by the Board of Nursing

Finally, §9-121 requires licensure as a “certified social worker” under Health Occupations Title 19.  Perplexingly, Health Occupations §19-101’s definitions do not define “certified social worker” or “social worker”.  Though they do define “license” and “certified” and refer to the practice of “certified social work” and “certified social work-clinical”.  So, there’s that.

If you’ve read this long, here’s your reward with key takeaways…

  • What a providers calls themselves does not mean it’s privileged: Go beneath the title
  • Privilege starts with the provider & whether they qualify as privileged
  • “Counselor” and “therapist” in a provider’s title does not automatically mean privileged
    • So, who may not be:
      • School counselor
      • School psychiatrist
      • Art therapist
      • Pastoral counselor
      • Behavioral counselor
    • That’s why you have to go beneath the title

But there’s more! Next step (and blog) – what is privileged?

*Md. Code Ann., Cts. & Jud. Proc. (2019 Rep. Vol.)


What does the Mental Health Privilege Protect?

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.

This blog explores “the what” – what is protected by the privilege.

Maryland’s 3 mental health privilege statutes* protect the following from disclosure in family law litigation:

Patient-therapist privilege (§9-109*) and Client-psychiatric nursing specialist or professional counselor (§9-109.1):

  • Communications relating to diagnosis or treatment of the patient or client; or
  • Any information that by its nature would show the existence of a medical record of the diagnosis or treatment

(language above is paraphrased and slightly different but the gist is the same)

Social worker-client (§9-121*):

  • Communications made while the client was receiving counseling
  • Any information that by its nature would show that such counseling occurred

The scope of privilege for licensed certified social workers is so much broader that the fact someone is in therapy and name of their LCSW is privileged.  The fact of therapy & name of provider easily creep up in family law litigation:  parents’ calendars, phone records, EOBs/explanation of benefits, credit card receipts, checks, electronic payment accounts.

Key takeaways:

  • Not all privileges are created equal
  • The type of provider determines scope of privilege
  • Inadvertent disclosure is a pitfall with the LCSW privilege (9-121*)

To keep this blog mercifully short, the next explores what’s not privileged (which gets juicy).

*Md. Code Ann., Cts. & Jud. Proc. (2019 Rep. Vol.)


What’s not Privileged?

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.  The scope of privilege depends upon the type of provider, and inadvertent disclosure of privileged information is a risk.

This blog explores “the what” – what is not protected by the privilege.

I’ll explore 3 categories of what isn’t privileged:

  1. What the privilege statutes say
  2. What the case law says
  3. What experience says

Privilege Statutes:

Each of the 3 privilege statutes creates exceptions to the privilege, with the relevant ones to family law litigation here:

  • A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder
  • In a civil or criminal proceeding…the patient introduces his mental condition as an element of his claim or defense
  • The patient expressly consents to waive the privilege…

These boil down to:

  1. Court-ordered mental health/psychiatric evaluation or testing
  2. Mental health as a claim or defense
  3. Express waiver

Parental fitness is a claim and defense in every custody case.  Mental health is a facet of fitness.  Never fear – case law is here to clear that up (see below).

More interesting than the stated exceptions…what the statutes don’t say.

  • 9-109 (psychologist, psychiatrist) and §9-109.1 (psychiatric-mental health nursing specialist, professional counselor) are narrower privileges than §9-121 (social worker), protecting only:
  • Communications relating to diagnosis or treatment of the patient or client; or
  • Any information that by its nature would show the existence of a medical record of the diagnosis or treatment

So, not everything is privileged.  See below (case law & experience) for examples of unprotected information.

As discussed previously, the social worker privilege is so broad that, to my reading, everything is privileged.  And, as will be discussed, the law does not recognize partial waiver.  So, if one intends to maintain privilege with a social worker, one must be diligent regarding inadvertent disclosure.

Case law:

As discussed above, when interpreting and applying our privilege statutes, our appellate courts make law in result.

Laznovsky v. Laznovsky, 357 Md. 586 (2000), tells us that claims of parental fitness or unfitness in a custody case doesn’t, alone, waive privilege.  (I’d forgotten, or hadn’t appreciated before, that until 1977 Judges could compel mental health records in a custody case without privilege waiver.)  Otherwise put, participation in a custody case, with the inevitable accompanying allegations of parental fitness or unfitness, does not introduce mental condition as an element of a claim or defense that waives privilege.

Other non-privileged information:

  • Prescriptions (Reynolds v. State, 98 Md.App. 348 (1993))
  • Group therapy (Reynolds v. State, 98 Md.App. 348 (1993))
    • Group therapy should be distinguished from family therapy (though I’ve yet to find Maryland law that does so explicitly) and couples therapy
    • Group therapy is among strangers
    • Family and couple’s therapy are among family members/people in relationship
    • Family therapy is privileged (Board of Physicians v. Eist, 176 Md.App. 82 (2007)) and by extrapolation so is couples therapy
  • Dates of service (Shady Grove v. Maryland, 128 Md.App. 163 (1999))
  • Statements made to other patients during hospital stay (Reynolds v. State, 98 Md.App. 348 (1993))

Experience:

In my experience the following aren’t privileged either (except for social work privilege):

  • Name of provider
  • What prompted the patient to seek therapy
  • Communications & behavior unrelated to diagnosis or treatment, especially outside of therapy sessions and with non-privileged staff (i.e. scheduling, arrival/departure, payment, appropriateness, etc.)
  • Bills (minus diagnosis)
  • EOBs/Explanation of benefits (minus diagnosis)
  • If a child’s therapy, who dropped off, picked up, and how behaved/what communicated

The takeaways:

  • Except for social workers and their expansive privilege, other mental health providers may have both privileged & non-privileged information
  • So, they may be able to testify about limited information & produce limited records, even if privilege isn’t waived
  • Privilege attaches when both the provider & the service performed are privileged

Up next:  The “who”:  Who holds the privilege and can waive it?


Who Holds the Privilege?  Who can Waive it?

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.  The scope of privilege depends upon the type of provider, and privilege does not protect everything known by or in the records of a mental health provider (except social workers).

This blog focuses on the “who”:  Who holds the privilege and can waive it?

Individual Therapy:

A patient, the patient’s authorized representative, or the patient’s guardian if the patient is incompetent, is the one who holds the privilege.  So the privilege-holder decides whether to refuse to disclose their own privileged information and whether a witness shall be prevented from disclosing privileged information.  Potential witnesses could be the therapist/mental health provider, as well as the patient’s spouse, co-parent, or family.

In Maryland, a minor child is considered incompetent to decide privilege waiver.  So, this falls to a guardian.  However in a child custody case, their parents, who are a child’s natural guardians, also lack capacity because a parent is considered to have a conflict of interest (Nagle v. Hooks, 296 Md. 123 (1983)).  An attorney must be appointed to make this decision on their child client’s behalf.  That attorney is called a Child Privilege Attorney (Rule 9-205.1 and Maryland Guidelines for Practice of Court-Appointed Attorneys Representing Children in Cases Involving Child Custody or Child Access).

Nagle v. Hooks does not apply in every legal situation where parents face a privilege waiver decision for their child.  McCormack v. Board of Education, 158 Md.App. 292 (2004) is a must read about when a conflict of interest arises disqualifying parents from deciding privilege waiver on behalf of their child.

Group Therapy:

Group therapy is not privileged (Reynolds v. State, 98 Md.App. 348 (1993)).  So with nothing to waive, there’s no privilege holder.  (Records may be confidential, which is outside the scope of this blog.  Health General §4-301, et seq.)

Family & Couples Therapy:

Group therapy should be distinguished from family therapy (though I’ve yet to find Maryland law that does so explicitly) and couples therapy.  Group therapy is among strangers.  So, there’s not the same expectation of privacy as in individual, family, or couples’ therapy.

Family and couples therapy are among family members/people in relationship.  Family therapy is privileged (Board of Physicians v. Eist, 176 Md.App. 82 (2007)) and by extrapolation so is couple’s therapy.

While Board of Physicians v. Eist is not the most explicit of cases, a careful reading leads to the conclusion that all participants in family and/or couples therapy are required to waive privilege.  Meaning if one does not, then no privilege waiver.

The lack of clarity in the law about family and couples therapy plus practicality (we can’t unknow something), point to the importance of not using the same therapist for individual and family or couples therapy.

The takeaways:

  • The patient holds the privilege
  • Minor children require a child privilege attorney (or other child counsel attorney with privilege waiver authority) to make a privilege waiver decision on their behalf in their parents’ contested custody case
  • All patient participants must waive privilege in family or couples therapy
  • Check if the mental health provider’s contract for services excludes him/her from participating in litigation (which may trump privilege waiver)

Next up:  the “how”:  How mental health privilege is waived.

How is Mental Health Privilege Waived?

This blog series discusses mental health privilege (the confidentiality a client has/clients have with their mental health provider) in contested family litigation (such as divorce and custody).

To recap:

A “privilege” is the legal right to protect a communication from disclosure & to keep information confidential.  Privileged information cannot be used in contested litigation unless the privilege is waived.

Privilege attaches when certain types of professionals provide mental health services.  Not everyone who is a “counselor” or “therapist” qualifies as a privileged provider.  The scope of privilege depends upon the type of provider, and privilege does not protect everything known by or in the records of a mental health provider (except social workers).

The client holds & can waive the privilege.  In family therapy, all participants must waive.  Group therapy (therapy among strangers) is not privileged.

Parents & Spouses

Parents & spouses waive their privilege when they:

  • Raise mental health as a claim or defense
  • Expressly waive their privilege (this may look like a signed waiver)
  • Call their therapist as a witness & offer privileged information into evidence
  • Name their therapist as an expert witness
  • Intentionally disclose privileged information (Davis v. Petito, 197 Md.App. 487 (2011))

A waiver need not be in writing or a particular form (In re Matthew R, 113 Md.App. 701 (1997)).  Intention to waive must be expressed, whether in word, act, or omission (failure to assert) (Id.).  This means inadvertent disclosure, without intent to waive, is unlikely (though I have yet to find an appellate opinion clearly establishing this).

Privileged records and information are presumptively privileged.  The party asserting waiver has the burden/responsibility to prove that waiver occurred.

Children

A child’s privilege in their parents’ custody case is waived by a Child Privilege Attorney or other child counsel attorney with privilege determination rights.  That attorney may waive the privilege on the record or is allowed to file their privilege decision with the Court.  Intentional disclosure of privileged information by the attorney or with the attorney’s consent/knowledge is also waiver (Davis v. Petito, 197 Md.App. 487 (2011)).

Up next:  Winding down this series with random FAQs.

I am a life changes attorney, helping my clients through big changes like marriage, breakups, and caring for loved ones who can no longer care for themselves.  I strive to make the legal side – prenups, divorce, and guardianship – easier, so my clients can focus on their changing lives & loved ones.

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