Husband’s Psychological Records Not to be Disclosed Publicly

Tennessee law case summary on discovery of mental health records in Tennessee divorce and custody law from the Tennessee Court of Appeals.

Hannah Ann Culbertson v. Randall Eric Culbertson – Tennessee Wife Can’t Subpoena Mental Health Records Even if Custody at Issue

Randall Eric Culbertson, the husband, aand Hannah Ann Culbertson, the wife, married on May 1, 2004 and had two children.  In July 2010 the couple separated.   In November 2010, the wife filed for divorce and alleged numerous instances of physical and emotional abuse by the husband toward her and their children.

In December 2010, following mediation, the trial court gave an order for a temporary parenting plan, including a requirement for both parents and the children to receive therapy by different counselors.  Two months later, the wife subpoenaed the husband’s psychologists and the husband filed a motion to quash, arguing that the information requested by the wife was protected by Tennessee law under the psychologist-client privilege.  The wife in turn filed a motion for release of the husband’s psychological records and the husband filed a motion to deny this request.  The trial court granted the wife’s motion for the husband’s records and denied the request for depositions from his therapists.

The husband refused to agree to the entry of the Qualified Consent Protective Order (QCPO) as to Psychological Records, submitted by the wife following the court’s decision, because it permitted his records to be disclosed to and discussed with experts brought by the wife and anyone else subpoenaed on the matter.  Despite the father’s objections, the trial court ruled that his attorney must sign the QCPO and granted the wife’s motion to have his psychological records released.  The husband applied for an extraordinary appeal to the court of appeals.

No disclosure of psychological records in Tennessee divorce

Tennessee law (Tenn. Code Ann. § 63-11-213 (2010)) protects the relationship between therapist and client and equates the confidentiality in this relationship with the relationship between attorney and client.  Using the attorney-client privilege as its basis, the appeals court found that this privilege is meant to encourage open communication between a lawyer and his client, but this privilege cannot be claimed on every conversation.  It is the client’s job to show that the communications were made with the intention of confidentiality.   Only the client has the right to waive the privilege.

Child custody cases differ because the primary consideration of the courts is the best interests of the children.  Tennessee law requires the court to consider a number of factors when weighing those best interests, including the mental health of the parents.  The wife argued that the husband “placed his mental health at issue” by first asking for sole custody of their child and then by demanding that she, the wife, provide proof of her allegations of abuse.

The appeals court agreed with the husband who argued that his psychologist-patient privilege is not waived because he asked for sole custody, nor is it waived because he denied the wife’s allegations and asked for proof of those allegations.  If the privilege was waived every time one spouse made accusations against the other, it would have no value because the records could be obtained simply by making the claim.

The appeals court found that the trial court ordered disclosure of the father’s psychological records without considering the legal principles involved.  The trial court judge, in allowing the release of the records, noted a knife incident involving the husband and expressed his concern that the husband might be dangerous.  But the appeals court held that the role of the court was to use its judgment, “guided by sound legal principles” and not the judge’s own “inclination.”   The appeals court concluded that the trial judge was mistaken in disclosing the psychological records to the wife and ordered that these records be protected.  Despite this decision, however, the appeals court held that due to the trial court’s concerns regarding the husband’s fitness, the records could be disclosed to the court alone.

No. W2011-00860-COA-R10-CV (Tenn. Ct. App. May 23, 2012).

See original opinion for exact language.  Legal citations omitted.

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