S.H.Y. v. P.G.

• Decision Date: 26 March 2021
• Docket Number: Case No. 2D19-4646
• Citation: 320 So.3d 797
• Parties: S.H.Y., Appellant, v. P.G., Appellee.
• Court: Florida District Court of Appeals

320 So.3d 797

S.H.Y., Appellant,

v.P.G., Appellee.

Case No. 2D19-4646

District Court of Appeal of Florida, Second District.

Opinion filed March 26, 2021.

Rehearing Denied July 1, 2021

Mark A. Sessums of Sessums Law Group, P.A., Tampa, for Appellant.

Kim A. Hamill of Older, Lundy & Alvarez, Attorneys at Law, Tampa, for Appellee.

SMITH, Judge.

S.H.Y. (Mother) appeals the Supplemental Final Judgment on P.G.'s (Father) Amended Supplemental Petition to Modify Final Judgment and Corrected Parenting Plan as to Time-Sharing, Parental Responsibility, Child Support, and Other Relief and to Enforce Specific Provisions. The trial court determined that the psychotherapist-patient privilege under section 90.503, Florida Statutes (2019), which was raised for the first time by the psychotherapist at the final hearing, barred the psychotherapist from testifying altogether, even as to those privileged matters previously disclosed by the psychotherapist. Because the psychotherapist previously disclosed privileged matters at her prior deposition and an emergency hearing without claiming the privilege, any privilege as to those disclosures was waived and could not be reinvoked. Thus, the trial court erred in allowing the psychotherapist to belatedly raise the privilege to bar all testimony. However, because a waiver of the privilege is not irrevocable, the psychotherapist was permitted to reinvoke the privilege as to matters not previously disclosed. Accordingly, we reverse and remand for a new final hearing on the Father's petition. We need not reach the other issues raised by the Mother, finding the issue of the psychotherapist-patient privilege dispositive.

Almost one year prior to the final hearing on the Father's petition and in advance of an upcoming emergency hearing, the Father issued a deposition subpoena duces tecum and served the minor child's treating psychotherapist. The notice accompanying the subpoena stated that the deposition was being taken "for purposes of discovery, for use at trial, and for any other purpose for which it may be used under applicable laws of the State of Florida." Other than some scheduling issues, the psychotherapist appeared at the deposition without objection, along with her counsel, and produced her entire file relating to her treatment of the minor child. The psychotherapist answered questions from both parties relating to her treatment of the minor child and the minor child's timesharing with the Father, and her counsel at times instructed her to answer when objections were made. At no time prior to or during the four-hour deposition did the psychotherapist or her counsel claim the psychotherapist-patient privilege. The psychotherapist later appeared the following month and testified at an emergency hearing—again never raising the privilege.

Almost one year later, on the morning of the final hearing on the Father's petition, the psychotherapist's counsel appeared and made an ore tenus motion for protective order on behalf of the subpoenaed psychotherapist due to a family emergency—the privilege was never mentioned nor claimed. Nor was the privilege claimed by the psychotherapist's counsel after the Father's counsel raised the issue of the exclusion of the psychotherapist's testimony based upon the privilege. The trial court granted the ore tenus motion without addressing the privilege.

At the continuation of the final hearing, the psychotherapist filed a motion for protective order raising for the first time the privilege and requesting the trial court to appoint a guardian ad litem for the minor child. Interestingly, the psychotherapist's counsel neither invoked nor waived the privilege under section 90.503(3)(d), but instead argued that "this motion is just to bring to the court's attention that the minor child does have a right via guardian ad litem which has not been appointed in this case to determine whether he or she should waive that privilege." (Emphasis added.) The psychotherapist's counsel further argued that no waiver occurred prior because it was her understanding that the deposition was mandatory.¹ After hearing further legal arguments from the Father and Mother, the trial court granted the motion holding that the privilege was not waived, despite the Mother's objection; however, the trial court did not appoint a guardian ad litem. At the request of the Mother's counsel, the trial court conducted an in camera interview with the psychotherapist, which the trial court obliged noting that it would be sealed. Following the interview the trial court announced that her interview with the psychotherapist was "taken into account by the court, and the protective order will stand and she will not be testifying."²

Relevant to our analysis here are sections 90.503—the psychotherapist-patient privilege—and 90.507—waiver of privilege by voluntary disclosure. Section 90.503 was enacted in order "to encourage patients to seek treatment for mental and emotional conditions," by protecting these confidential communications from disclosure. Attorney Ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301, 306 (Fla. 4th DCA 2001). Section 90.503 provides, in pertinent part:

(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

(3) The privilege may be claimed by:

(a) The patient or the patient's attorney on the patient's behalf.

(b) A guardian or conservator of the patient.

(c) The personal representative of a deceased patient.

(d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.

Against this backdrop section 90.507 allows for waiver of the privilege:

A person³ who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.

As evidenced by the clear language of section 90.503, the privilege inures to the patient and not the psychotherapist. Wray v. Dep't of Pro. Regul., 410 So. 2d 960, 961 (Fla. 1st DCA 1982) (holding that the privilege may only be waived by the patient or a person acting on the patient's behalf). When the patient is a minor, the law recognizes "that a child has a privilege in the confidentiality of her communications with her psychotherapist." Attorney Ad Litem for D.K., 780 So. 2d at 307-08 (holding that the seventeen-year-old patient had sufficient mental capacity to obtain her own treatment and assert the privilege herself). But where the minor lacks that mental capacity, section 90.503(3) allows a patient's attorney, guardian, or psychotherapist to make that decision on the patient's behalf. While parents, as legal and/or natural guardians, have traditionally acted on behalf of minor children when making important decisions regarding a child's physical and mental health, the courts draw exception in child custody matters recognizing that the parents' interests may not always be aligned but rather conflict. See Brown v. Brown, 180 So. 3d 1070, 1072 (Fla. 1st DCA 2015) (stating that neither parent is authorized to waive or assert the privilege on behalf of the minor child when the subject matter of the litigation deals with the child's welfare); Attorney Ad Litem for D.K., 780 So. 2d at 307 ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf.").

We first dispense with the Father's argument that strict statutory construction of sections 90.503 and 90.507 requires us to hold that the privilege cannot be waived by a psychotherapist because section 90.503 is silent as to waiver and because only the patient holds the privilege. Courts "[i]n analyzing the breadth of the privilege and scope of the waiver ... have often analogized the psychotherapist-patient privilege to the attorney-client privilege." State v. Topps, 142 So. 3d 978, 980 n.3 (Fla. 4th DCA 2014). And so, the psychotherapist-patient privilege is no different than other statutory privileges and, thus, may not only be expressly waived but also even implicitly waived by "conduct or disclosure that is inconsistent with the maintenance of the privilege." Id. at 981 (citing McKinlay v. McKinlay, 648 So. 2d 806, 810 (Fla. 1st DCA 1995) (applying the general body of law holding that statutory privileges such as psychotherapist-patient, lawyer-client, and accountant-client can be waived)); see also Hughes v. Schatzberg, 872 So. 2d 996, 997 (Fla. 4th DCA 2004) (holding in a child custody action that the trial court did not err in allowing the psychotherapist to testify without establishing waiver of the privilege where the mother had no standing to assert the privilege on the child's behalf); Arias v. Urban, 595 So. 2d 230, 232 (Fla. 3d DCA 1992) (stating that the parents were not acting on behalf of their son when they denied allegations in a negligent supervision suit and, therefore, could not waive the psychotherapist-patient privilege held by their son); Wray, 410 So. 2d at 961.

The psychotherapist alone may exercise the privilege, so long as the psychotherapist is acting on behalf of the patient. See §...