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In 1996, the Supreme Court of the United States was
called upon to determine whether the federal courts should
recognize a psychotherapist-patient privilege. In Jaee v.
Redmond, 518 U.S. 1 (1996), the Supreme Court held that
communications between a patient and her therapist were
protected from disclosure.
After Jaee, every jurisdiction in the United States
recognized some form of a psychotherapist-patient privilege
for mental health treatment. e implementation and
treatment of this privilege varies among the federal circuit
courts and the state courts. “In the states, the law of privilege
is riddled with exceptions and has been described as a “crazy
quilt pattern of legislation across the country” where social
policy goals, professional ethics and legal requirements are all
at odds with each other.” See Symposium, Meeting the Needs
of Persons with Mental Illness: Best practices and Remaining
issues in the law: article the psychotherapist-patient privilege
in family court: an exemplar of disharmony between social
policy goals, professional ethics and the current state of the
law, supra at p. 532.
Most states have recognized exceptions to the privilege
in certain circumstances, such as when a patient presents a
danger to themselves or others (“dangerous patient”
exception), mental health commitment proceedings and
Privileges are evidentiary restrictions on the admit-
tance of condential information in court proceed-
ings. ey apply to information communicated in
private condential relationships, such as attorneys
and their clients or physicians and their patients.
Privileges protect against the forced disclosure of statements
and communications at the option of the witness, client, or
patient. See Black’s Law Dictionary 1078 (1979).
Constitutions (privilege against self-incrimination),
statutes and the common law create these privileges. One of
the oldest privileges dating back to the Roman rule of law is
the attorney-client privilege. For an interesting discussion of
the history of privileges, see Symposium: Meeting the Needs
of Persons with Mental Illness: Best practices and Remaining
issues in the law: article the psychotherapist-patient privilege
in family court: an exemplar of disharmony between social
policy goals, professional ethics and the current state of the
law, 29 N.Ill. U.L. Rev. 499 (Summer 2009).
e psychotherapist-patient privilege came into eect as a
result of the introduction of psychotherapy and the related
need for condentiality and trust to achieve eective psycho-
therapy. In the 1960s, states began enacting statutes creating
evidentiary privileges to protect against the disclosure of
communications between psychotherapists and patients.
Discovery of
Mental Health
Records in
Family Law
BY JULIE A. AUERBACH
Published in Family Advocate, Volume 45, Number 3, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
