The recent case of M.M. v. L.M., 2012 Pa. Super. 195 (September 12, 2012), held that in a custody matter, the father’s mental health records were not discoverable. The confidentiality of communications between a patient and the treating psychiatrist or psychologist, as well as the documents covered by the Mental Health Procedures Act, were paramount and the court must use the least intrusive alternative to determine the effect of a party’s mental health upon the child’s best interest.

The Superior Court held that the best way to determine whether a party’s mental health affects the best interest of the child is to engage in a court-ordered psychological evaluation pursuant to Pennsylvania Rule of Civil Procedure 1915.8.

In M.M. v. L.M., the father had been through multiple hospitalizations because of his bipolar disorder and his mental health had been at issue throughout the parties’ custody litigation. The father had been hospitalized for five days in 2010 and for a week in 2011. The father had supervised custody for a limited time and was ordered to undergo a court-ordered psychological evaluation, which was originally ordered in August 2010. While the litigation was pending, the mother scheduled a deposition of the father’s psychiatrist that never took place. Additionally, the father engaged in violent behavior during custody exchanges and allegedly assaulted the maternal grandfather during a custody exchange by biting the grandfather’s ear.

After this incident, the trial court ordered an updated psychological evaluation in June 2011 (which never occurred).

In August 2011, the mother filed a petition seeking the release of the father’s mental health records. The father objected to the mother’s request and the trial court subsequently entered an order directing the father to produce the medical records from both of his hospitalizations. The father filed a timely appeal. The trial court distinguished the matter from Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009), (the seminal case addressing the disclosure of confidential mental health records during a custody matter) because of the concern the trial court had with the father’s mental health condition and because the father had not consistently asserted that his mental health records were privileged.

The trial court reasoned that the father had waived the privilege by submitting to the court-ordered psychological evaluation, by consenting to the deposition of his psychiatrist and authorizing the release of specific information on a monthly basis to ensure his compliance with appointments and drug treatments.

The father argued that the alleged severity of his bipolar disorder was “irrelevant to the determination of whether he should be compelled to disclose his mental health information” and that all of the mother’s concerns could be addressed in the court-ordered psychological evaluation.

Additionally, the father argued that he never waived his privacy privileges by submitting to the evaluation or by authorizing the release of specific information. The Superior Court agreed with the father.

The court, relying heavily on its prior rationale in Gates, found that mental health records were privileged and could not be released without the father’s written consent. The court went on to state that the importance of confidentiality cannot be overemphasized.

The purpose of the Mental Health Procedures Act, set forth in 50 P.S. §7102, is to ensure the availability of adequate treatment to people who are mentally ill. This purpose would be severely crippled if the patient’s records could be the subject of discovery in a panoply of possible legal proceedings. Agreeing with the father, the court stated that it did not agree with the trial court, which found that the alleged severity of the father’s mental health problem was a permissible reason to compromise the privilege of confidentiality.

The Superior Court held that by directing the father to engage in a court-ordered psychological evaluation, the privilege of confidentiality may remain intact while determining the effect of his bipolar disorder on his daughter’s best interest. Finding this to be the least intrusive means to determine how a parent’s mental health condition will affect a child’s best interest, it is the preferred method, according to the opinion. The court stated that during the original psychological evaluation, the father “permitted” the appointed psychologist to access his mental health information and treatments. There was no requirement that the father authorize the court-ordered psychologist access to his mental health records.

Finally, the court found that the father had not waived his statutory privilege of confidentiality by submitting to the evaluation, consenting to the deposition of his psychiatrist or authorizing the release of specific medical information. None of the father’s actions, according to the Superior Court, amounted to a waiver of his privilege of confidentiality.

The Superior Court questioned the mother’s motives in seeking the release of the father’s records and stated, “Indeed, the crux of the mother’s position is that she prefers to present her expert’s opinion to the trial court rather than the unquestionably neutral conclusion of the court-appointed mental health expert.”

The Superior Court found the mother’s desire to present her own expert questionable, stating that her request was “telling” and “untenable,” and rejected her arguments wholeheartedly.

The court’s reasoning on this issue raises several questions. Is not the sole purpose of litigation to present your best case? How can a litigant’s right to present her own expert be labeled a “motive”? What litigant — and, for that matter, what mother — would not prefer to present her own expert when she is presenting their case and, as in this case, fighting for the best interests of her child? Why should the mother — and why should the court — rely solely upon the findings of a possibly underpaid, underqualified, court-appointed expert without the ability to have access to all of the information upon which said expert may be relying? Should this court-appointed expert not be the subject of a full and complete cross-examination? How can this cross-examination be complete without providing both parties, and their experts, with all of the relevant documentation and information?

In seeking to protect the privilege of confidentiality, the court noted that a patient seeking treatment may be less candid with his or her treating professional if his or her records are not protected. Does this not strengthen the mother’s argument that the father would not be as candid with the court-appointed expert, who may or may not have access to the party’s mental health records, depending upon the whim of the allegedly mentally ill litigant?

The court states that it is not in the child’s best interest if the father is not candid with his treating professional. How is it in the child’s best interest to rely upon an expert who (as all parties and the court are aware) will not have a full, complete and candid picture of the father’s mental health?

If the court believes that a court-ordered psychological evaluation is the least intrusive means to determine how a parent’s mental health condition will affect a child’s best interest, then should not the court-ordered psychologist performing this evaluation be required to review the mental health records of the person upon which he or she is performing the evaluation?

The fact that the father permitted the psychologist access to his mental health records from 2010 (we do not know whether he would allow access to his 2011 records) begs the question as to whether the appointed psychologist should be required to review and consider this invaluable information.

Finally, how can M.M. v. L.M. be reconciled with In the Matter of the Adoption of Lisa Marie Embick, 35 Pa. Super. 491 (1986), in which the court found that even if a psychologist-patient relationship did exist, the statutory privilege must yield where the psychologist’s testimony was material and necessary to the proper determination of a termination of parental rights hearing. Contrary to the court in M.M. v. L.M., the court in Embick stated:

“It would be anomalous to insist that the hearing court examine all evidentiary resources, conduct a full and comprehensive hearing, and, at the same time, deprive the hearing court of material testimony concerning the mental or emotional condition of the natural parents. Where, as here, the record demonstrates that a piercing of the wall of protected communications between the natural parents and the psychologist is both material and necessary to a proper determination of issues before the court, the statutory privilege protecting such communications must yield.”

Is not the same reasoning applicable in a custody matter in which the court is determining the best interests of a child? Are the parents’ rights in a termination matter more important than a child’s? I, for one, think not. •

Caren E. Morrissey is a partner with Weber Gallagher. She focuses her practice on divorce and family law matters, including child custody and visitation, child support issues, and the division of marital assets and debts.