Can My Spouse Learn My Confidential Commuications With Therapists

As a child growing up in the 80’s I listened to all kinds of music — that includes early Rap music — on my boom box from my happy suburban home in Annapolis, MD. One of the rap lyrics that stand out in my mind all these many years later is found in a song entitled “The Message” written by Grandmaster Flash and the Furious Five. The hook of the song says: “Don’t push me ’cause I’m close to the edge. I’m tryin’ not to lose my head. It’s like a jungle sometimes. It makes me wonder how I keep from going under.” You may be wondering where I am going with this. It’s simple. Every day in our Maryland family law practice, we encounter persons that are dealing with a situation so unexpected and shocking that it literally leaves the person disoriented and dispirited. And often before a potential client can decide what legal steps he/she should take we encourage the person to speak with a therapist or counselor to help him/her process the range of emotions that one feels when the world such as one knew it has changed so suddenly with little to no advance warning. One of the concerns that we hear when suggesting that a new client seek counseling, especially where child custody is going to be a hotly contested issue is whether the individual will be forced to disclose to the other party (parent) that he/she has seen a mental health professional. ************************************************************** Question: Can a party compel disclosure of a spouse’s communications with a therapist related to diagnosis or treatment as part of a custody action? Answer: No. Under Maryland law, communications between a patient and a psychiatrist or psychologist is privileged and therefore protected from forced disclosure. However, the individual seeking to keep such information private must be careful to invoke the privilege in a timely manner and not inadvertently waive the privilege. A party can inadvertently waive the privilege by introducing his/her mental condition as an element of his/her claim or defense. For example, if a party in a divorce action introduces his/her anxiety or depression as an explanation for why he/she cannot obtain or maintain employment, then the court can decide that such party has “opened the door” to fuller inquiry into his/her treatment records and diagnosis records. Similarly, a party can answer certain questions presented orally or in writing by opposing counsel that inquires into past mental health treatment or diagnosis and find that in doing so, he/she has waived the privilege when there is a later attempt to assert the privilege. Conversely, a party or a party’s authorized representative can expressly consent to waive the privilege where there is a decision by the party (with counsel) that such waiver is appropriate. ************************************************************************* In short, there are times in most people’s lives when life becomes overwhelming and it’s hard to get hold of one’s emotions. Often a divorce precipitates one of those times. There is no harm in engaging a professional therapist to help manage the emotional aspects of a divorce while engaging a legal counselor to help manage the legal aspects of the divorce. Both of these professional relationships are covered by legal privileges to encourage the client to speak with candor and get the advice and support he/she needs.