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Florida Second DCA rules that trial court erred in allowing psychotherapist to invoke the psychotherapist-patient privilege in a child custody hearing as to matters previously disclosed concerning the child’s treatment in a prior deposition and hearing

On March 26, 2021, in S.H.Y v. P.G., No. 2D19-4646, the Florida Second DCA reversed a trial court ruling following a child custody hearing, finding that the trial court erred in allowing a psychotherapist to belatedly raise the psychotherapist-patient privilege under Fla. Stat. § 90.503 and refuse to testify in the hearing. The Second DCA ruled that because the psychotherapist previously disclosed privileged matters concerning treatment of the child at her prior deposition and an emergency hearing without claiming the privilege, any privilege as to those disclosures was waived and could not be re-invoked. However, the Second DCA additionally noted that because a waiver of the privilege is not irrevocable, the psychotherapist should be permitted to reinvoke the privilege at a new hearing on remand as to matters not previously disclosed. The Second DCA noted that while the psychotherapist-patient privilege inures to the patient and ordinarily can only by waived by the patient or a person acting on the patient’s behalf, where a minor lacks the mental capacity to assert the privilege on her own behalf, § 90.503(3) allows a patient's attorney, guardian, or psychotherapist to make that decision on the patient's behalf, and where the subject matter of the litigation is a child’s welfare, neither parent is authorized to waive or assert the privilege on behalf of the minor child.

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