219 So. 3d 655
Ala. Civ. App.2016Background
- Dr. Barbara Johnson, a licensed clinical psychologist, petitioned for a writ of mandamus after the Shelby Circuit Court denied her motion to quash a third-party subpoena seeking psychotherapy records for a minor patient (the child).
- Johnson has treated the child since August 2013; the subpoena was issued by the child’s father (the former husband) in connection with a custody-modification proceeding initiated by the mother (the former wife).
- Johnson asserted the psychotherapist-patient privilege on behalf of the child and stated the child has not waived the privilege; the trial court ordered production despite that claim.
- The respondents declined to file answers to the mandamus petition; the appellate court therefore accepted Johnson’s factual averments as true.
- Alabama law (statute and Rule 503, Ala. R. Evid.) recognizes a psychotherapist-patient privilege; Rule 503(d)(5) creates a narrow exception for child-custody cases when the mental state of a party is clearly at issue.
- The court concluded the custody-rule exception applies when a party seeking custody has placed his or her mental state at issue, not when the child’s mental state is at issue, and found no showing that the child’s records were necessary to resolve the parents’ mental-state issues.
Issues
| Issue | Plaintiff's Argument (Johnson) | Defendant's Argument (Former husband) | Held |
|---|---|---|---|
| Whether the psychotherapist-patient privilege protects the child’s psychotherapy records from a third-party subpoena | Johnson: privilege belongs to the child; records are confidential and privileged; child has not waived privilege | Former husband: subpoena seeks relevant evidence in custody-modification litigation; Rule 503(d)(5) permits disclosure when mental state of a party is clearly at issue | Held: Privilege protects the child’s records; trial court erred in ordering production |
| Whether Rule 503(d)(5)’s custody exception authorizes disclosure of a child’s therapy records when the child is the subject of the custody dispute | Johnson: exception applies only when a party’s (custody-seeker’s) mental state is clearly at issue, not the child’s | Former husband: child’s records may bear on custody and should be producible under the custody exception | Held: Exception targets the mental state of a party seeking custody; does not authorize disclosure merely because the child’s mental state is relevant |
| Whether mandamus is an appropriate remedy to review the discovery order | Johnson: mandamus appropriate because a privilege was disregarded and no adequate remedy at law exists | Respondents: (declined to answer) | Held: Mandamus granted — appellate review appropriate where privilege was erroneously disregarded |
| Whether the psychologist may assert the patient’s privilege and whether the patient waived it | Johnson: she may assert the privilege on behalf of the child; no waiver occurred | Respondents: (no answer / implied waiver or relevancy argument) | Held: Psychologist may assert privilege for patient; court accepted averment that no waiver occurred and protected records |
Key Cases Cited
- Ex parte T.O., 898 So.2d 706 (Ala. 2004) (mandamus review appropriate when a privilege has been disregarded)
- Ex parte Integon Corp., 672 So.2d 497 (Ala. 1995) (elements required for issuance of mandamus)
- Ex parte Turner, 840 So.2d 132 (Ala. 2002) (appellate court may accept petition averments as true when respondents do not answer)
- Ex parte Western Mental Health Ctr., 884 So.2d 835 (Ala. 2003) (psychologist may assert psychotherapist-patient privilege on behalf of patient)
- Jones v. McCoy, 150 So.3d 1074 (Ala. Civ. App. 2013) (a child is not a party to a custody-modification action)