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  1. #1

    Default How to Get a Mental Health Professional to Testify in Court

    My question involves a marriage in the state of: TX
    I am heading to divorce from my wife of 5 years, and a custody battle over our 3 year old daughter.

    After unsuccesfully trying couples therapy for her severe depression, the therapist told me on the phone that my wife has mental disorders (BPD, bipolar) unrelated to me that prevent her from escaping her depression, which would greatly adversely impact her parenting ability. I plan to use her mental illness to gain custody when the time is right to move forward with an attorney.

    How does it work to get the therapist to testify to the court about my wife's mental condition? Do I ask the therapist do do a favor and testify? Would the therapist need to be paid? Or would a subpoena simply require the therapist to divulge what she told me? Do HIPPA laws apply?

    The therapist was actually HER therapist paid by her insurance although I was brought in for couples therapy, so I'm wondering how HIPPA restricts what the therapist can tell me or the court.

  2. #2
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    Default Re: How to Get Mental Health Professional to Testify in Court

    If your WIFE's therapist told you these things, you can bet she won't risk her license going to court and admitting to breaching a patient's confidentiality.

  3. #3
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    Default Re: How to Get Mental Health Professional to Testify in Court

    Quote Quoting BooRennie
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    If your WIFE's therapist told you these things, you can bet she won't risk her license going to court and admitting to breaching a patient's confidentiality.
    What if there is a patient information release form in place? I know my wife is able to be given any and all medical information related to me...not so fast.

    OP - your first step would be to simply ask the therapist if he/she would be willing to testify on your behalf. I suspect she will decline as it is a conflict of interest to have your wife's therapist testify on your behalf.

  4. #4
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    Default Re: How to Get Mental Health Professional to Testify in Court

    HIPAA laws very much apply, and unless your wife signed a written authorization for the therapist to release that information to you, the therapist can be in serious trouble for telling you that. Do you know if your wife did so?

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    Default Re: How to Get Mental Health Professional to Testify in Court

    Let's address the other elephant in the room.

    Having a mental illness isn't going to even matter in many cases. The BIG question as of right now, is what's the current schedule? This isn't the first custody-based question OP has asked here...but the details matter.

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    Quote Quoting PADriver13
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    What if there is a patient information release form in place? I know my wife is able to be given any and all medical information related to me...not so fast.

    OP - your first step would be to simply ask the therapist if he/she would be willing to testify on your behalf. I suspect she will decline as it is a conflict of interest to have your wife's therapist testify on your behalf.
    Psych records are not the same as other medical records, necessarily. I suspect OP is not going to have a good day today....just a hunch.

  6. #6

    Default Re: How to Get Mental Health Professional to Testify in Court

    How in the world would "patient confidentiality" apply? It was only considered my wife's therapist because she had the better insurance to get the most affordable couples therapy, but we BOTH were at therapy together when the therapist told her what she was doing wrong, then when my wife discounted everything the therapist said and refused to return, it was me who called the therapist (who considered us a joint case for couples counseling) who emphathized with all that I have had to put up with from my wife, and told me her assessment of my wife. End result is we weren't ready for couples therapy since my wife needed to work on her extreme issues first.

    Did you know that very few therapists are willing to tell their patient directly what their mental illness is? Because that risks turning their patients away from them, especially in the case of depression/bipolar/borderline personality disorder (yes we've had several therapists who told me that but not her to her face). In relationships where these mental disorders exist, the partner without the disorder is very much part of the "case" and affected worse than the partner who was diagnosed. Google on "coping with a depressed partner" to see what I mean. It's horrible on everybody especially the child.

    Wouldn't HIPPA go out the window when I am included in the sessions where I am told the problems with my wife right in front of my wife?

  7. #7
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    Default Re: How to Get a Mental Health Professional to Testify in Court

    Quote Quoting frewer
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    My question involves a marriage in the state of: TX

    After unsuccesfully trying couples therapy for her severe depression, the therapist told me on the phone that my wife has mental disorders (BPD, bipolar) unrelated to me that prevent her from escaping her depression, which would greatly adversely impact her parenting ability. . . .

    The therapist was actually HER therapist paid by her insurance although I was brought in for couples therapy, so I'm wondering how HIPPA restricts what the therapist can tell me or the court.
    It's not a HIPAA issue once you are in court; it is a therapist-patient privilege issue.

    First, whether or not there is a therapist-patient privilege depends on the credentials of the therapist. An MD psychiatrist, definitely, it's a doctor-patient privilege. Other credentials like licensed psychologist and social worker, it varies by state.

    The general rule is that anything said during couples counseling is not privileged as to each other meaning if your wife tries to use the therapist-patient privilege to stop the therapist from testifying, at least as to what was divulged in couple's counseling, there is no privilege.

    However, if your state recognizes therapist-patient privilege given whatever credentials the therapist has, whatever your wife said in individual therapy including the therapist's conclusions drawn from those statements is privileged and you cannot compel the therapist to testify to those things UNLESS you can show that your wife did not keep those statements confidential, i.e., she told other people what went on in her therapy sessions. Additionally, your wife can give her consent for the therapist to testify if she chooses to.

    As for the statements to you by the therapist about your wife's condition, if your wife did not sign a HIPAA form authorizing the therapist to speak to you and given the therapist's credentials the therapy is regulated under the HIPAA laws, then the therapist has committed not only a HIPAA violation, but an ethical violation and malpractice also. I doubt you will get the therapist to admit he/she did that.

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    Quote Quoting frewer
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    How does it work to get the therapist to testify to the court about my wife's mental condition?
    Since the therapist was a treating therapist in that he/she had your wife in individual therapy and you both in couples therapy, the therapist is a fact witness who can be subpoenaed for a deposition and should your divorce go to trial, to appear in court.

    However, if you are asking the therapist to testify about his/her conclusions drawn from individual therapy and in your state given the credentials of the therapist there is a therapist-patient privilege, your wife can object to allowing the therapist to testify and would win on that UNLESS you can show that your wife has disclosed the information to other people. For instance, if you wife has gone around telling people her therapist has diagnosed her with BPD, she has waived the privilege at least to the therapist testifying that he/she has diagnosed your wife with BPD.


    Quote Quoting frewer
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    Do I ask the therapist do do a favor and testify?
    No, your attorney would tell the therapist that you want to depose him/her and your attorney would subpoena the therapist if he/she won't agree to the deposition.


    Quote Quoting frewer
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    Would the therapist need to be paid?
    Yes, the therapis would need to be paid the witness fees authorized by your court. Moreover, you would pay for the attorney's time to depose the therapist as well as a court reporter to transcribe the deposition.

  8. #8
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    Default Re: How to Get a Mental Health Professional to Testify in Court

    HIPAA = Health Insurance Portability and Accountability Act

    HIPAA. NOT HIPPA.

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    Default Re: How to Get a Mental Health Professional to Testify in Court

    Quote Quoting cbg
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    HIPAA = Health Insurance Portability and Accountability Act

    HIPAA. NOT HIPPA.
    I think HIPPA has a better ring to it.

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    Default Re: How to Get a Mental Health Professional to Testify in Court

    Quote Quoting JulesJam
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    I think HIPPA has a better ring to it.
    If you can't be right, be wrong at the top of your voice.

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