Ex parte Dr. Barbara Johnson – When a minor child is not a party to a custody dispute, his psychiatric records are privileged and not subject to an exception.

The Alabama Court of Civil Appeals has decided the matter of Ex parte Dr. Barbara Johnson [Ms. 2150835], — So.3d — (Ala.Civ.App. 2016), in which Dr. Barbara Johnson petitioned the appellate court for a writ of mandamus whereby Dr. Johnson sought to be precluded from producing psychotherapy treatment and evaluation records of a minor child. Ordinarily, appellate courts will not review discovery orders via mandamus petition, but the court applies an exception where privilege has been disregarded. See Ex parte T.O., 898 So.2d 706, 710 (Ala. 2004).

Alabama Code (1975) § 34-26-2

The underlying case is a custody matter, wherein one of the parents issued a subpoena to Dr. Johnson to produce the psychiatric records of the minor child. Dr. Johnson avers that the child is her patient and possesses the privilege, rather than either of the parents, and the child has not waived the privilege. Pursuant to Alabama Code (1975) § 34-26-2, “the confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”

Alabama Rule of Evidence 503(d)

While Alabama Rule of Evidence 503(d) recognizes a privilege exception that allows psychiatry records to be produced in child-custody cases, that exception only applies when the mental status of a party is in question. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.” Ala. R. Evid. 503(d). In the underlying case, the mental status of the minor child, who had been treated by Dr. Johnson, was in question, and the minor child was not a party to the case. Therefore, there was no exception to the privilege, and Dr. Johnson’s psychiatric records were not discoverable.