Opinion
No. FA 05-4009103S
December 12, 2006
MEMORANDUM OF DECISION RE MOTION TO QUASH AND FOR PROTECTIVE ORDER (#112)
In this action for dissolution of marriage, the plaintiff wife has sought discovery of records related to psychiatric treatment of the defendant husband by serving a subpoena duces tecum on Teresa Bergherr, M.D., a medical doctor practicing in the area of psychiatry. The subpoena directed Dr. Bergherr to appear in New Haven Superior Court on September 21, 2006, and to bring and produce "any and all files related to Joseph DeRosa." Dr. Bergherr has appeared through counsel and filed a motion to quash and for protective order which appeared on the family short calendar for September 21, 2006. Her motion seeks a protective order relieving her of the obligation to appear in court or produce any records pursuant to that subpoena. Counsel for the parties and the subpoenaed witness appeared before this court on that day for argument on the motion to quash. The court thereupon offered both parties an opportunity to submit written briefs. Since then, the court has received a brief from plaintiff but not defendant. For the reasons stated below, the motion to quash is granted, though without prejudice, as further explained below.
The statutory privilege contained in General Statutes § 52-146e protecting communications between a patient and psychiatrist is well-known. It prohibits disclosure of all "records and communications" "relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist" without the patient's consent except under limited circumstances. The plaintiff claims here that one of the statutory exceptions not requiring the patient's consent and set forth in General Statutes § 52-146f applies. In particular subsection (5) of that statute provides as follows:
Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.
The plaintiff claims that the defendant, by seeking custody of the parties' minor children, has put his mental condition at issue in the present matter. In support of that proposition, she relies primarily on the case of In re Romance M., 30 Conn.App. 839, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994). That case involved the termination of parental rights of a mother whose psychiatric and alcohol problems had repeatedly caused the mother to seek help caring for her children from the Department of Children and Families. In appealing the termination, the mother claimed that the trial court wrongly ordered disclosure of an interview she had with a psychiatrist while being treated for alcoholism. Applying the provisions of § 52-146f, the Appellate Court held that
when the mental health of a parent in a termination of parental rights case is an issue, as it is in this case, the best interest of the child requires that the privilege between psychiatrist and patient give way once it is shown to the trier of fact that the "communications and records" are relevant to the issues in the case.
Some trial courts have recently criticized the Romance decision, in light of Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571 (2000) as improperly injecting "best interest of the minor child" as a criterion for ascertaining whether to authorizing disclosure of confidential psychiatric records. See, e.g., In Re Ashley W., Docket Nos. F04-CP02-005515-A, and F04-CP02-005516-A, Superior Court, Judicial District of Middlesex Juvenile Matters at Middletown (February 1, 2006, Bear, J.); In Re Na-Shawn J., Docket No. F01-CP04-001726A, Superior Court for Juvenile Matters at Danbury, (June 29, 2006, Winslow J.). In Falco, the Supreme Court held that statutory exemptions from the confidentiality provisions should be strictly construed and that courts should not enlarge the statutory exceptions by common law. Regardless of that criticism, however, the most that the Romance decision ever held was that when a parent's psychiatric condition was a genuine issue in a TPR case, § 52-146f permitted a court to order disclosure of otherwise privileged psychiatric records. In Romance, the psychiatric and substance abuse problems that had repeatedly led the parent to seek DCF help were the reason that DCF sought to terminate the mother's parental rights on the grounds that she had failed to rehabilitate herself as a parent so she could assume a responsible position in the lives of her children. Since the mother claimed that she had overcome those problems, she had made the question of her mental fitness an issue in the proceeding.
In the present case, on the other hand, there is no indication that the father has made his mental condition an issue in the case. Unlike in Romance, this court does not have before it evidence of a long history of mental illness on his part, nor any evidence that mental illness has affected his ability to care for his children. The Romance decision does not hold that merely making a claim for custodial rights introduces a party's mental condition as an element in the case, at least not without substantial other evidence that the party's mental state affects its ability to care for the children.
In addition to the requirement that party make its mental condition an issue in the case, § 52-146f imposes a second condition before a court may order disclosure of confidential psychiatric records or communications: a court must also find "that it is more important to the interests of justice that the communications be disclosed." There are numerous other ways to acquire information about a parent's mental fitness for custody or parental access than ordering disclosure of confidential psychiatric records. For example, the court can order psychiatric or psychological evaluations of the parties, psychological assessments of the parties' interactions with their children, and ongoing supervised visitations that would provide evidence over time about how the parent interacts with the child. Given the possibility of obtaining information about the defendant's mental condition in such a manner, the court cannot find here, on the record before it, that the interests of justice require Dr. Bergherr to produce any privileged records or communications.
Accordingly, for the reasons explained above, the motion to quash and for protective order is granted. This order is without prejudice, however, to the plaintiff seeking such discovery again in the future on a different factual record and if court-ordered examinations do not produce adequate information as to the parties' abilities to care for the children and meet their needs.