United States: Supreme Court Of New Jersey Creates Unified Mental Health Service Provider Privilege

Last Updated: October 6 2015
Article by Robert A. Epstein

The question of a parent's mental health often arises in the midst of a custody dispute, with a family court judge faced with the difficult questions of whether there actually exists a mental health issue and, if so, how does it impact upon the child's best interests under New Jersey's custody statute.  While the "fitness of the parents" is a specifically enunciated factor under the statute, a parent's mental state also interweaves its way through many of the other statutory factors.

What happens, then, when the parent whose mental status is in question is undergoing or has undergone some form of therapeutic/psychiatric treatment?  Is what transpired during the sessions relevant to the custody analysis?  Is the family court judge entitled to review and use such information?  Can the information be mandatorily disclosed to the other party and/or expert tasked with making a recommendation as to custody and parenting time?  Until now, the New Jersey Rules of Evidence provided that most communications between a party/patient and the mental health care provider are subject to an evidentiary privilege and, thus, the person holding the privilege can refuse disclosure.

The Supreme Court of New Jersey in Kinsella v. Kinsella, 150 N.J. 276 (1997), noted exceptions to the psychologist-patient privilege where the subject party effected a limited waiver of the privilege by placing his or her emotional and mental state in issue, and where a so-called "piercing" of the privilege is required in the best interests of the child.  The Court was careful in distinguishing between a "typical divorce custody proceeding" and one where a "parent's capacity to care adequately for the child" is in question because of a mental stability issue (perhaps, for instance, the party was recently hospitalized due to a nervous breakdown).

There are many different types of mental-health care providers beyond a psychologist or psychiatrist, however, where the privilege of communications with a patient/litigant may come into play in a family court matter.  Inconsistency as to the application of such privileges, however, led to a recent amendment to the New Jersey Rules of Evidence that will take effect next year.

Specifically, on September 15, 2015, the Supreme Court of New Jersey adopted what is being referred to as a unified "Mental Health Service Provider-Patient Privilege" under New Jersey Rule of Evidence 534.  The Notice to the Bar describes the new rule as modifying or replacing "the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers."  The rule is not exclusive to family court proceedings.

Generally, as even defined in the rule itself, a privilege means, in this context, that the patient (or the patient's guardian/conservator, personal representative of a deceased patient, or if authorized by the patient, a member(s) of the patient's family) has a privilege to "refuse to disclose in a proceeding, and to prevent any other person from disclosing confidential communications," which are defined within the rule.  The mental-health service provider "shall" also claim the privilege unless otherwise instructed by the above-referenced people who may otherwise claim the privilege.

To that end, the rule specifically applies to "confidential communications between a mental health service provider and a patient during the course of treatment of, or related to, the patient's mental or emotional health condition."  Communications made between the below-listed service providers and victims of violent crimes are excluded from coverage under the rule and, instead, are examined under the "Victim Counselor Privilege" provided in New Jersey Rule of Evidence 517.

The rule defines a "mental-health service provider" as a "person authorized or reasonably believed by the patient to be authorized to engage in the diagnosis or treatment of a mental or emotional condition.  The rule, however, then interestingly covers many different categories of service providers that may or may not be typically thought of as being designated as providing treatment in the area of mental health:

1.  psychologists

2.  physicians, including psychiatrists

3.  marriage and family therapists

4.  social workers, including social work interns and certified school social workers

5.  alcohol and drug counselors

6.  nurses

7.  professional counselors, associate counselors or rehabilitation counselors

8.  psychoanalysts

9.  midwives

10.  physician assistants; and

11.  pharmacists

Looking beyond the broad list of mental-health service providers, what, then, constitutes a "confidential communication" under the rule?  The rule defines the term as "such information transmitted between a mental-health service provider and patient in the course of treatment of, or related to, that individual's condition of mental or emotional health, including information obtained by an examination of the patient, that is transmitted in confidence, and is not intended to be disclosed to third persons."

"Third persons", however, contains its own exceptions.  Specifically, the communication, in order to be confidential, is not intended to be disclosed to third persons other than (1) those present to further the interest of the patient in the diagnosis or treatment; (2) those reasonably necessary for the transmission of the information, including the entity through which the mental-health service provider practices; and (3) persons who are participating in the diagnosis or treatment of the patient under the direction of a mental-health service provider, including authorized member's of the patient's family, the patient's guardian, the patient's conservator; and/or the patient's personal representative.

The rule then provides eleven (11) different types of communication for which the privilege does not apply including, but not limited to, a communication that is relevant to an issue in a proceeding in which the patient seeks to establish his competence, or in a criminal matter where the defendant's competence to stand trial is put at issue; upon an issue as to the validity of a will of the patient; or, as may be more likely applicable to the realm of family law:

"Made in the course of any investigation or examination, whether ordered by the court or compelled pursuant to Court Rule, of the physical, mental, or emotional condition of the patient, whether a party or a witness, with respect to the particular purpose for which the examination is ordered, unless the court order otherwise, and provided that a copy of the order is served upon the patient prior to the communication, indicating among other things that such communications may not be privileged in subsequent commitment proceedings."

Finally, the rule provides that courts are not prevented from compelling disclosure of a confidential communication where (1) as oftentimes occurs in matrimonial matters, the patient "has expressly or implicitly waived the privilege or authorized disclosure; or (2) exercise of the privilege would violate a constitutional right.

There are a lot of moving parts to the new rule, but ultimately it is designed to provide consistency and ease of application to judges and practitioners when such privilege-related issues arise.  It will be interesting to see how its broadly defined terms apply in divorce matters and related custody disputes, especially when in many, if not most cases, family law practitioners will argue that the subject custody dispute is not merely "run of the mill", so to speak, but merits disclosure of what may otherwise be shielded by this patient-based privilege.  In other words, the rule will undoubtedly become a major part of custody-based litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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