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Psychiatric Confidentiality in Child Custody Disputes
SPECIAL ARTICLE
Psychiatric Confidentiality in Child Custody Disputes CARL P. MALMQUIST, M.D.
ABSTRACT Objective: The various legal and ethical issues that may arise in the context of divorce proceedings when custody of
a child is disputed are noted. A latent issue in such cases pertains to the treatment records of the parents, as well as the child, if any of the parties have ever been in any type of psychiatric treatment or mental health therapy. The principal parties may seek access to each others' records, and courts and attorneys may do so as well. Method: The issues that arise are explored by way of hypothetical clinical cases, as well as a consideration of leading appellate cases from different legal jurisdictions. Results: Access to psychiatric treatment records is often handled in diverse ways by clinicians in disputed custody proceedings. Their clinical experience offers little to guide them in this confusing area. To complicate matters, legal rulings may differ from one jurisdiction to another as well as within one jurisdiction. Positions taken vary along a continuum from the extremes of advocating that all past and current psychiatric treatment records be made available in such disputes, to no records being made available. Conclusions: In the state of current confusion and risk for psychiatrists, as well as past and present patients, a proposal is made that only when issues of "parental fitness" are raised should consideration be given to the release of psychiatric treatment records, in contrast to the traditional rule of "best interests of the child," which would continue to operate in other areas of family disputes. J. Am. Acad. Child Ado/esc. Psychiatry, 1994, 33, 2:158-168. Key Words: confidentiality, custody disputes, psychiatric records,
mental health of parents.
It is not uncommon for estranged parents, in the course of dissolving their marriage, to disagree with respect to who should have custody of their children. Such situations should concern every psychiatrist who has treated a parent or a child. A variety of approaches have been used. A traditional legal approach is for each side to hire an expert who testifies at a custody hearing. Another is for the two parties to retain a psychiatrist, or some other mental health professional, to assist in resolving the dispute with the hope of avoiding a court battle. However, if such mediation
Accepted October 12, 1992. Dr. Malmquist is Professor of Social Psychiatry, University of Minnesota, Minneapolis. The author acknowledges the Task Force on "Disclosure of Psychiatric Treatment Records in Child Custody Disputes" of the American Psychiatric Association, which Dr. Malmquist Chaired, and expresses his appreciationfor discussions with members of the Task Force. Reprint requests to Dr. Malmquist, University of Minnesota, 909 Social Sciences Building, Minneapolis, MN 55455, phone: 612-624-4300, FAX: 612-624-7020. 0890-8567/94/3302-0158$03.00/0©1994 by rhe American Academy of Child and Adolescent Psychiatry.
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does not succeed, a court hearing may ensue in which the psychiatrist will be asked for expert testimony on the custody issue. In some cases, law firms may have agreed on a psychiatrist to assist, with a customary proviso that the recommendation or opinion of the psychiatrist will not be binding. In these situations, all parties concerned, including attorneys, patientsclients, and psychiatrists, acknowledge that if an agreement cannot be reached, the psychiatrist will be expected to offer an opinion at the custody hearing. Apart from arrangements when parents separate, a different situation occurs when there has been previous treatment. Confidentiality issues then arise. Similar issues may arise if treatment is ongoing and records are sought. Psychiatric treatment may have gone on sometime earlier and ended, or it may have begun in the midst of marital turmoil and be continuing. One or more children may have been in treatment or in some form of family therapy. That psychiatric treatment records themselves could later become a matter of dispute has usually not been considered by anyone involved. One party, or both, may raise issues claiming
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that the best interests of the child will be served by the revelation of past psychiatric treatment records of the parentis). If only one parent has received treatment, the opposing parent may seek to have the record come into the proceedings. An attempt may also be made to bring in the treatment records of children, if the parents are differing with the hope that the records will contain damaging information about the opposite parent. To complicate matters, courts may seek access to psychiatric records, and the greater the protest about how embarrassing the records may be to a parent, the more strongly a judge may feel there is cause for concern (Slovenko, 1991). The issue in these cases revolvesaround the confidentiality of past or present psychiatric records, in contrast to situations when a psychiatrist is directly retained for trial purposes. The primary purpose of this article is to analyze the issues raised in such situations regarding the confidentiality of records from the perspective of the different interests involved: the two parents, minor children, and the court who represents the public. A description of how typical issues arise will exemplify the problems. The methodological approach is to use court cases to illustrate how confusion reigns in this difficult area. A paradigmatic situation is where one or both parents have been, or still are, in psychiatric treatment at the time their marriage is ending. The parties, through their attorney, want access to the psychiatric records of the other party, presumably because they believe the records will serve their interests. Some concerns may be legitimate because of past psychiatric difficulties of a parent, but an attorney may also be on a "fishing expedition" to obtain material. There may be an attempt to gain access to psychiatric records directly through the process of discovery by a court order. If this is not successful, an independent court-appointed psychiatric examiner may be sought, or someone who can function in lieu of a psychiatrist, under court appointment, to get access to the records. An immediate problem is trying to ferret out legitimate inquiries from inappropriate extension to obtain psychiatric files, psychological testing, counseling, or marital therapy records. When there is a marital dissolution, how can a determination be made that a sufficient threshold has been reached, to assess whether some type of mental disturbance is impinging on the capacity to parent? A
related question is how much information should be revealed. Treating psychiatrists often try diverse methods to protect their patients in these delicate situations. Some psychiatrists who treat patients with marital problems initially have tried to use an agreement that, in the event of a subsequent dispute, they would not have to testify or provide their records. Although this ploy attempts to distinguish a treatment situation from a consultative or testimonial role, in reality such agreements do not prevent courts from issuing orders to produce treatment records. At best, such agreements serve to put the parties on notice, but they may not alert the parties to the dangers of their records being revealed later. When the issue of seeking psychiatric records is raised in court, jurisdictions operate diversely, and within a jurisdiction judges may follow their own predilection. One court may indicate it wishes to review the psychiatric records to determine what is admissible. Another appoints a psychiatric consultant to evaluate the records in terms of relevance, and to submit a report to the court for a decision or argument. Others advocate a special master or mediator. A variation is for a guardian ad litem to assess whether the information might be harmful to a child. The purpose of a guardian ad litem is to protect the child from harm owing to release of information rather than to protect the interests of the parent or necessarily to address issues that are before court. The situation is one where it is never clear from one case to another what may be revealed. A number of questions arise. What is to be the time limit involved? If the parent was in treatment a year ago, is this material still current? How far back should records be made accessible before a time limit would run out, or would the records be considered relevant no matter what the time limit? The question is how relevant past records are to the present situation regarding custody of children. The argument for an independent psychiatric evaluator to examine psychiatric records in a custody dispute is that details that are relevant to a disposition could otherwise be missed. In the current milieu ofallegations of past sexual or physical abuse, all manner ofexpanding inquiries can occur. The inquiries may extend into the past, in terms of how long ago alleged behavior took place. Questions may arise about the validity of assessments that have been performed. Allegations need to
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be distinguished from legal findings on a particular case. Throughout such evaluations, the guiding principle for a psychiatrist is the current level of psychological functioning in terms of the degrees of symptomatic impairment that mayor may not be present, and the dynamics of interaction with the child. Subtleties in parental personality structures are not the key but rather the need to counter simply looking for data that can be used in contentious proceedings. The question is whether there is a compelling need to have past psychiatric records to evaluate the capacity of the parent with respect to current parenting abilities. Mental health professionals may have different views on revealing past mental health records in custody disputes. Within the psychiatric profession, those who primarily treat children may have different views from those psychiatrists who deal with adults. Some question whether women may be hurt more than men when treatment records are made public, based on the statistical fact that more women than men in the childbearing age range have been patients. It is disconcerting for psychiatrists, clinically as well as ethically, to find their records being made public in disputes that could harm their patients. Guardians ad litem for children may argue that minors have privacy rights to control revealing what parents may have said about them and vice versa. Revealing such material could be harmful to the child in the future. Assertions of childrens' rights over parents' records stand independently of the guardians' rights to control the treatment records. Issues of informed consent may arise. If treatment has been carried out without informing the patient that the records could be sought later, and they are released in a subsequent dispute, a breach of informed consent may have occurred. Does a warning need to be given at the commencement of treatment to evety adult patient who is a parent or who might become one? Even such a warning would not necessarily protect the interests of the child. The difficulty is that control over records is lost to the former patient and the treating psychiatrist. If a policy of revealing treatment records is in the ascendancy, something like a Miranda warning might be needed for adult patients beginning therapy. Exceptions under the privileged communication statutes may be provided for a justification to override parental objections if the interests of justice
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to the child seem to outweigh the potential harm from the release of information. ILLUSTRATING THE CONFLICT: HYPOTHETICAL CASES Example 1
A divorced couple with a joint custody arrangement split summer vacations with their 9-year-old daughter. The girl was in the next room when her father, who had been in psychiatric treatment for a major affective disorder, slashed his throat. She heard gasping and gurgling, found her father on the floor, and called her mother who arranged for police and an ambulance. The father was admitted for 6 weeks to a psychiatric unit. Subsequently, the mother sought to gain sole custody with supervised visitations for the father. The father objected to any change in the visitation arrangements. The dilemma arises about obtaining the psychiatric records for the 6 weeks of hospitalization, as well as the father's psychotherapy records for the 2 preceding years. Example 2
During custody proceedings, a mother alleged sexual abuse of the child by the husband. The father countered with allegations of physical abuse by the mother. Neither parent offered supporting evidence for the charges. Both parents demanded each other's psychiatric treatment records, and both announced the introduction of the child's treatment records into evidence. When such issues are raised in divorce or custody disputes, multiple agencies, as well as district attorneys' offices, may get involved. Questions arise as to whether a judge should order disclosure of the parents' records, in addition to permitting the parents to use the child's records. Example 3
A father had periodic psychotic episodes that responded to neuroleptic medication with occasional relapses. Neither parent had any past concern about his functioning with respect to their two elementary school-age children. In one intermittent psychotic state requiring hospitalization, bizarre ideas emerged about
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the children. He believed they were sending him covert messages about their wicked and evil ways, and that he was responsible for their sinful development unless steps were taken. After treatment, such thoughts were vague, but reappeared at times. At a divorce and custody dispute, a year after the last hospitalization, the mother sought sole custody of the children, and demanded access to the father's psychiatric treatment records from before, during, and after his hospitalization. Example 4
At the time of a divorce, a father acknowledged that he was bisexual. He had adopted a homosexual orientation, and an amicable divorce settlement was arranged with joint custody. A few years later, the mother became concerned about the father involving himself with a number of men in what she characterized as "promiscuous relationships." The mother contended that the impact of this lifestyle was a negative influence on the development of the children. After the divorce the father had begun seeing a psychiatrist, but it was not known why. The mother wished to make a change of custody arrangement and requested that the court grant her motion to disclose the father's treatment records. Example 5
Two college-educated parents had a 4-year-old daughter, with parenting arrangements based on housekeepers caring for the child. The mother suffered a setback at work and abruptly departed, leaving a note that she had a new job in a different city. She apologized for leaving so unexpectedly, wished her husband well, and asked him to take care of their daughter. Three months later, the mother telephoned to announce where she was, and wanted to begin visitation arrangements. The father, upset at the mother's departure, had entered psychiatric treatment for depression. Two years later, after the failure of mediation, both parents petitioned for primary (or sole) custody, with physical visitations arranged with the other parent. The father offered the records of his psychiatric treatment and requested his separated wife's psychiatric treatment records. She refused, arguing that the records were irrelevant to her claim for custody and not germane to her parenting. Affidavits were submitted by her and
her psychiatrist, swearing that nothing in her records related to her fitness as a parent. The court was asked to decide whether to accept these affidavits or the position of the father that the records of both parties be made available. Example 6
A couple with three children were involved in a custody dispute. The psychiatrist was first engaged by the father to do a custody study and subsequently by a court order on stipulation of both parties. Under the first arrangement, the father paid the psychiatrist, but after the court order, the mother paid. The psychiatrist met with the children for five sessions and with the mother for three sessions. The father's contacts involved several phone calls, and informal encounters when the children were taken to interviews. The father sought to block any testimony by the psychiatrist on the basis of psychiatrist-patient privilege barring such testimony. Questions arose as to whether material before the court order or all of the material should be barred, or whether the psychiatrist should be allowed to submit a report and testify, based on contacts with the father. One question was whether communications with the psychiatrist were related to diagnosis or treatment of a mental condition; if not, treatment of the father would not be seen as having had a psychiatristpatient relationship. On such matters, the question of the psychiatrist submitting a report and testifying were argued. In this case (Bieluch v. Bielucb, 1983) the court ruled that the father was not in a treatment relationship and could not claim a privilege. DISCUSSION OF LEGAL ISSUES The Parents
Courts have adopted diverse positions on whether a parent in a custody dispute may assert a privilege against testimony by someone in the mental health field who treated the parent. Its position also may vary depending on whether the professional is a psychiatrist, a psychologist, or a marriage counselor. Two extremes have emerged: that the parent's privilege is maintained or that a parent seeking custody puts his or her psychiatric status at issue and waives the privilege against confidentiality. The reasons given in support of these
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positions vary. The position arguing for maintaining confidentiality emphasizes parental privacy as paramount. It holds a substantial privacy interest in communications made during a treatment relationship. Confidentiality should then be maintained unless an overwhelming reason exists to waive the privilege. Only when a parent's current mental health is at issue and alleged to impinge on the welfare of the child, is it conceded that resorting to an independent examination conducted specifically for the trial court may take place. The issue of a psychiatrist conducting such an examination and offering an opinion, without access to past records, may then arise. If records are not provided, an additional question arises as to whether such an examination is adequate to offer a medical opinion. The Child
Related psychiatrist-privacy issues may arise regarding a child who has received treatment. Records from the psychiatrist treating the child may be sought, with or without parental psychiatric records. These records may be seen as useful either to an independent examining psychiatrist or to the court. The usefulness of the information obtained from the child's psychiatrist is pitted against the child's right to privacy. Does the child or a guardian have to consent for the treating psychiatrist to testify? How is the child to give such a consent? Is the child's competence to consent dependent on developmental age (Grisso, 1986)? The psychiatrist may feel differently about communicating information to the court than does an independent examiner. There may be a feeling that the child cannot give a meaningful consent and that a substitute consent by a guardian may not envisage the possible longrange detrimental effects. The same antinomies operate, whether the court respects the child's right to confidentiality or whether another independent inquiry should be made as to the necessity for obtaining the treatment records. Similar parallels to the parents operate when an independent examination of the child is sought in the absence of the past psychiatric records of the child. Is There Automatic Waiver?
Some appellate jurisdictions have considered whether the physician- or psychotherapist-patient privilege is
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automatically waived by a parent who seeks custody of a child, once the mental and emotional condition of a parent has been raised. About one-fourth of the states have addressed the issue, with myriad results. The issue frequently arises at the trial court level, but in the absence of guiding policy, the status of an automatic waiver remains uncertain. Three approaches have been tried. (1) When parents seek custody, their mental health condition is put at issue, and the doctor-patient privilege is waived. (2) Parents do not automatically put their mental health status at issue or waive the doctor-patient privilege during custody proceedings; however, to determine the best interest interests of a child, a court may resort to a court-appointed independent evaluation of the parent without making past records available. The limitations of such examinations have been noted. (3) The mental health of a parent is not automatically put at issue during custody proceedings, but when the current mental health of a parent related to the capacity to parent becomes a point of controversy, the doctorpatient privilege would yield at the court's discretion. The position is that only in extreme circumstances should the treatment records be made available. Whether the child's records would be made available would be decided separately from a decision about the status of the parents' records. In all these approaches a guiding principle governing policy decisions is lacking. LEGAL CASE ANALYSIS
A California case brought these issues to the attention of the American Psychiatric Association and led to the creation of a Task Force and publication of a Task Force Report (1991). The case of Allred v. Superior Court (1987) raised the issue of whether a mother, suing for custody of her child, automatically placed her mental condition at issue. If so, she waived her physician-patient and psychotherapist-patient privilege. When the mother argued against making her records available, the father countered by arguing she had tendered her general fitness as a parent and thereby waived the privilege to maintain confidentiality of treatment records. The respondent court held that initiating a custody suit triggers the patientllitigant exception to the physician- and psychotherapist-patient privileges, and the mother was ordered to disclose her medical and psychiatric records. This holding by the
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lower court promoted the entrance of the Northern California Psychiatric Society, the California Psychiatric Association, and the California Medical Association, acting as amicus curiae, to oppose the respondent court's decision. The Allred case was eventually settled without an appellate decision being rendered. It was a case of first impression, as only two other California cases had addressed the issue of the patient-litigant exception in custody and visitation proceedings. In these cases, the party moving to quash a subpoena to obtain medical and psychiatric records had not placed their physical or mental conditions at issue, and the patient/litigant exception did not apply (Annotation, 1990). The following case examples illustrate the problem. A father sought to modify custody and sought a subpoena to obtain medical records because the mother had drug overdosed (Kashman v. Superior Court, 1980). The court denied the mother's motion to quash the subpoena, and the court of appeals was petitioned to prevent disclosure of the records. The court issued a writ, holding that the physician-patient privilege applied in custody disputes, and the trial court could compel disclosure only when the patient's own action placed the records at issue. In this case, the father had raised the issue of the mother's medical condition, so the privilege applied. A similar case arose a year later (Simek v. Superior Court, 1981). Although the privilege has been created by legislatures, only Massachusetts has created a statutory exception to the privilege for custody cases (Massachusetts General Laws, 1985). This statute provides that in custody cases, upon a hearing in chambers, the judge can exercise discretion to determine whether the psychotherapist has evidence that may bear significantly on the person's ability to provide custody. If so, the judge has the power to decide whether it is more important to the welfare of the child that the communications be disclosed or that the relationship between the patient and the psychotherapist be protected. This balancing act places a burden on the judge to decide whether the best interests of the child supposedly outweigh the privacy interest of the parent. Leading appellate cases illustrate the existing diversity. A critique of the reasoning used in these appellate court decisions follows. In some states (Alabama, Illinois, Louisiana, Missouri, New York, Rhode Island, and South Dakota), it is recognized that a court has
the power through legislation or court rulings to order a psychiatric or mental examination for the purpose of properly awarding custody. In other jurisdictions, it has been held that a court has such power even apart from any statute (Alabama, Nebraska, and New York). Most revealing is the lack of uniformity on rulings and the reasons given for the rulings. Cases Where Custody Disputes Automatically Put the Mental Health of the Parent at Issue and Waive the Doctor-Patient Privilege
Some jurisdictions (Delaware, Kansas, Kentucky, Nebraska, and Louisiana) have, at times, gone in the direction of automatically triggering a waiver of the physician- and psychotherapist-patient privilege. These courts then view child custody as analogous to the general exception of a patient who becomes a litigant. In a Kansas case (Werner v. Kleiwer, 1985), the court relied on the statutory exception to the physicianpatient relationship to maintain no privilege for confidentiality where the mental condition of the parent was controlling and an element of the defense. Kentucky and Louisiana courts have interpreted their states' child custody statutes as containing an implicit waiver by holding that custody must consider the mental and physical health of all parties. Courts can then admit prior evidence of emotional conditions (Atwood v. Atwood, 1984). Yet, things are seldom that clear, such as in a Louisiana separation suit that was not seen as implying a waiver when the husband tried to admit records about his wife's abortion (Arsenaux v. Arsenaux, 1983). A Nebraska court adopted a conservative approach, noting it was not taking a position making relevant the information contained in the file cabinets of every psychiatrist who ever treated a litigant. To determine the admissibility of psychiatric records by a waiver would be initially entrusted to the discretion of a trial court (Clark v. Clark, 1985). This frequent approach turns matters over to a trial court judge who is endowed with the power to decide about revelations of past psychiatric records. The problem is that courts have few legal or social policies to guide them. Some jurisdictions admit materials and communications from marriage counselors, for example, because material from counseling is not encompassed under the privileged communications statute or is not viewed as treatment.
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Cases that decide the special doctor-patient privilege should be waived cite the traditional family court axiom about the best interests of the child. The court may fall back on ordering a court-appointed evaluator to assess the mental status of a parent who is or was a psychiatric patient. The evaluator may not necessarily be given the right to demand past records for purposes of the examination. A New York court took the position that a privilege claimed from a treatment relationship was not absolute (Perry v. Finmano, 1978). If it could be demonstrated that invasion of protected communications was necessary to the determination of custody, the rule of protecting such privilege from a physician, psychologist, or social worker could yield. The court considered the argument that custodial parents might forego obtaining needed psychiatric help because of concern that confidential material might be revealed later. To avoid this dilemma, the court offered a precautionary note that such privileges should not "cavalierly" be ignored. It must be shown beyond "mere conclusory statements" that resolution of the custody issue required revelation of the material. Earlier N ew York cases had established that past psychiatric records of a parent seeking custody were admissible only upon a showing that the records would be related to the custody question (Matter of Dovidio, 1968). A problem arose when a parent, whose medical records were released, later brought a civil lawsuit against whoever released or obtained the treatment records. Under the guiding principle of their materiality to disposition, such suits usually have not been successful, although they can be long and nasty. ANew York family court granted the request of a husband for his wife's treatment records at a psychiatric treatment center, and the center then sent the records to the husband's attorney. The wife later claimed this led her to abandon the custody battle. She sued the attorney, alleging he had obtained her psychiatric records illegally. The suit was dismissed when a court ruled that the records had been properly obtained under New York's Mental Hygiene Law. The wife then sued the state whose mental health office ran the psychiatric center, but the court ruled she had waived her privilege against disclosure of mental health records by seeking custody of the children. The principle was "confidentiality must yield to disclosure in the face ofa countervailing public interest" (Ace v. New York, 1990).
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New Jersey cases have found a limited waiver regarding psychiatric hospital records of a parent seeking custody. Their solution was for the court to examine the records and disclose the contents to both parties if the judge found some basis in the records for a decision regarding custody. However, in the same case, the court refused to order a physician, who had committed the mother to a hospital, to be deposed. Instead, it ruled that a court-ordered psychiatric examination was more appropriate (D v. D, 1969). Another New Jersey case involved communications to two psychiatrists specializing in marriage counseling. At that time, New Jersey had a statute that made communications "privileged" between a marriage counselor and client. The court found that the privilege resulted in a denial of due process for the child by blocking the introduction of material evidence for proper determination of custody, and the statute was found unconstitutional (M u. 1(, 1982). Although dealing with psychiatrists in the role of marriage counselors, this case raised the possibility that a statute providing for a physician-patient privilege could be subject to constitutional scrutiny because of interference with the child's rights. Cases Where Custody Disputes Do Not Automatically Put the Mental Health of the Parent at Issue or Waive the Doctor-Patient Privilege
Some states (Florida, Idaho, Georgia, and Missouri) do not automatically tender a parent's mental condition, but case law seems to allow an exception for significant aspects of a parent's mental state. A juvenile delinquency proceeding in Pennsylvania did not involve a custody dispute, but raised similar issues regarding confidentiality (In re B, 1978). A psychiatrist was found in contempt for refusing to provide the mental health records of a mother whose child was before the court. Pennsylvania's highest court held that although the doctor-patient privilege did not preclude disclosure of records, the mother's constitutionally based right to privacy barred disclosure. The position was that the juvenile court should have found a less intrusive method to evaluate the mother's fitness, such as a voluntary examination by a court-appointed psychiatric expert. Four years later, the Pennsylvania court held that a court's "delving into the private records of a custodial parent's psychiatric history is an impermissible invasion
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of privacy" (Com ex Rel Gorton v. Gorton, 1982). The court affirmed that the present and future mental health of the parent is to be emphasized rather than past mental health. Florida has had some controversial cases going against admission of psychiatric records. One dispute bypassed the usual justification of the best interests of the child and ruled that, in the absence of an allegation that either parent was "unfit," and in the absence of a "good cause" as to why a forced examination was necessary, a mental or physical examination should not be ordered (Kristensen v. Kristensen, 1981). Florida also would not order a psychiatric examination of a mother when a father had abandoned the mother and moved the child out of state, and there had been a psychiatric hospitalization of the mother 14 years earlier (Frisard v. Frisard, 1984). A Florida appeals court reversed a trial court's order requiring a father to undergo a psychological examination in a situation of many crosscomplaints concerning child custody and visitation (Williams v. Williams, 1989). The trial court was seen as abusing its discretion, because only the mother's self-serving pleadings had placed the father's mental health at issue. In another custody case, a trial court had permitted discovery of the mother's medical records on the basis that Florida did not recognize a general doctor-patient privilege. An appeals court reversed, holding that the psychotherapist-patient privilege protects discovery of records involving a mental or emotional condition (Oswald v. Diamond, 1991). Cases in Which the Mental Health of a Parent Is Not Automatically Put at Issue, But If a Controversy, the Doctor-Patient Privilege May Yield
Efforts to terminate parental rights raise analogous issueswhen psychiatric records are sought. An Alabama case involved allegations that a mother was mentally unstable as a former mental patient and did not provide adequate care for her child (Matter ofVon Goyt, 1984). Traces of a tranquilizer were found in the urine of the child. The mother's medical records were allowed into evidence, and parental rights terminated. The decision was upheld on appeal that cited the child's "best interests" doctrine with "substantial doubt" about the mother's ability to care for the child. The ramifications of this case have been critiqued (Knowles and McCarthy, 1986).
In another Alabama case, a father counterpetitioned for a custody modification based on the mental state of the mother. After an in-camera hearing, the court allowed access to the records (Harbin v. Harbin, 1986). Allegations of child neglect where circumstances clearly indicated neglect allowed admission of psychological records in Washington (In re the Marriage of Nordby, 1985). A termination of a parental rights case in Delaware allowed court perusal of mental health records when the parents opposed the petition (Shipman v. Division of Social Services, 1981). This outcome has the effect of enforcing compliance at the risk of records being inspected. A complicated Delaware case involved initial foster parents who later adopted five foster children. After one child had problems, the child was placed in another home by the Department of Social Services. The second foster parents tried to adopt the child, but the first foster parents initiated an action for visitation. Social Services petitioned to terminate completely the parental rights of the first adoptive parents. The family court permitted discovery of the mother's psychological history on the basis that the parents had raised the issue of their mental health when they petitioned for visitation (Betty IB v. Division ofSocial Services, 1983). Once parental rights have been terminated, for example, because of child abuse, it can be required that a mental health person be seen for evaluation and recommendation (In re Welfare Siegried, 1985). N ew York courts reflect confusion as noted above. In one case communications were held to remain privileged unless the status was waived by a client (Yaron v. Yaron, 1975). However, another case held that a psychologist-client privilege was automatically waived by the party seeking custody (Baecher v. Baecber, 1977). When a father sought custody of his three daughters, and the appellate court believed the decision would turn on psychiatric issues, it ruled that the trial court has abused its discretion in not ordering such an examination (Giraldo v. Giraldo, 1982). In another case, a ruling was that a party in a custody dispute need not be examined by the other party's psychiatrist if a Department of Social Services had conducted an examination (Rosenblitt v. Rosenblitt, 1985). A different case saw it as trial court error when a father's motion for the mother and child to submit to a psychiatric examination was denied, even though a family evaluation by a social worker was available (Radigan v.
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Radigan, 1985). Significant variables such as family conflict, alcohol or drug abuse, psychiatric hospitalization, past or present treatment, tend to make rulings unpredictable in the absence of policy. Outcome then seems dependent on a single variable or its absence, such as whether there is a history ofemotional problems in the parents or child (Mascoli v. Mascoli, 1987). The complexity of cases is revealed in a New York case in which the issue was the release of the mother's records related to alleged alcoholism and bulimia (Susan W v. Ronald A, 1990). The hospital refused release, claiming a Public Health ServicesAct prohibited release of substance abuse records without the patient's consent. New York's Mental Hygiene Law was raised, allowing disclosure without a patient's consent if a court specifically found that the interests of justice outweighed confidentiality. Federal regulations were cited to allow disclosure if it was found that the public interest outweighed the potential injury to the patient. After all this, the matter was left with the husband having permission to renew the motion but not to compel the wife to authorize release and the hospital having the authority to determine whether statutory criteria were met. A mother and her son were treated by a psychiatrist, but when the boy moved in with his father, a custody battle ensued. The psychiatrist later spoke with the father and the father's attorney. The mother brought a suit against the psychiatrist for breach of fiduciary duty, alleging the psychiatrist had disclosed privileged information that resulted in her losing custody. A summary judgment for the psychiatrist was granted on the basis that the psychiatrist actually had an obligation to confer with the father, and the court had ordered the psychiatrist to testify (Zim v. Benezra, 1989). DISCUSSION
The current situation is one of confusion about the confidentiality of all psychiatric records in custody disputes. Many jurisdictions have not guiding opinions, and courts and mental health professionals are left with great uncertainty. Even worse, patients are unaware of how their records may become public. In this confusing milieu in our litigious society, for offering an opinion or testifying, psychiatrists may find themselves defendants in a lawsuit. They also may have to explain the complexities of their professional role to a licensure
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board or ethics committee when the issues have not been resolved in any consistent manner by courts or social policies. Apart from the fact that everyone likes clarity, the question arises about the benefit of advocating a particular position. Although taking a position as a professional group can never dictate to a court, it is desirable to have a position with the goal of protecting parents, children, and psychiatrists who are faced with future uncertainty. At this time, custody disputes involving psychiatric records operate with no guidelines, and individual psychiatrists testify for one side or the other when retained by the parties or on a court order when mental health issues arise. We are in a position of waiting to see what courts may decide in the future and of trying to keep abreast of changing, and perhaps conflicting, rulings in one's particular jurisdiction. A second alternative would recommend the release of psychiatric records any time a current or former patient is in a custody dispute. The clinical basis for this position is that the records may be useful to a court in its custody decision. It is a position that may be comfortable to child psychiatrists who like to have records made available when asked for an opinion on custody (Goldzband, 1990). Such a position means that any present or prospective parent in treatment is operating blindly with respect to later release of their records. Some child psychiatrists advocate a quasiMiranda type of warning be devised so that in the event of a lawsuit, prospective patients can make an informed decision about whether they wish to pursue psychiatric treatment, given this limitation on future privacy. There is also the dilemma of the child. Whether the parents' records contain material on the child that could be embarrassing now (or later as an adult) must be considered. One recommendation is for a guardian ad litem or independent psychiatric examiner to review materials and give an advisory consultative opinion to the court. If a child has been in treatment in his or her own right, similar issues are relevant in terms of revealing these treatment records. However, the presumption that a guardian will make the best recommendation in such situations is unexamined. A third approach recommends that parents' past psychiatric records should almost always remain privileged in a custody dispute. It argues that it should be up to the court and the respective parties to agree about
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any contemporary examinations regarding psychiatric functioning, in the absence of past psychiatric records. Parents are seen as having a substantial privacy interest in not having to accept the possibility that their communications to a psychiatrist will later be made public in a custody dispute. The therapeutic alliance is predicated on the desirability of promoting openness so patients are not discouraged from seeking treatment because that privacy might later be abrogated. Some courts have countered this position by arguing that due process for children demands evidence about the parents to aid custody arrangements. In the oftcited Lifschutz case (1970), the California Supreme Court held that the psychotherapist-patient privilege was an aspect of a patient's privacy rights, but that the psychotherapist could be held to answer questions directly relevant to the subject of the suit. In that case, the plaintiff in a personal injury suit was claiming "extreme mental and emotional distress" as a result of an assault by the defendant. This article shows that in custody disputes no jurisdiction seems to grant an absolute right of privacy when it sees the need for psychiatric records to reach a decision. A fourth position proposes that, in light of diverse confidentiality and privilege rulings, the parents' privilege should be maintained in the large majority of foreseeable circumstances. If the court and the parties believe the issue of current personality functioning for a parent has a major bearing on how a custody decision should be made, a current appraisal and report to the court and to the respective parties can be performed by an independent psychiatrist. There is then no need to rely on previous treatment records. The appraisal could be by a court-appointed psychiatrist or one agreed to by the parties. Such a position acknowledges that future conflicts could arise and involve a party who does not wish to have past events revealed. The question becomes one of deciding whether the psychiatrist's treatment records are the proper vehicle for resolution of such an impasse, or whether courts should seek information elsewhere. Conclusions Before disclosure of records, the best compromise guidelines would appear to be (1) An allegation of mental disturbance should never suffice to open treatment records. Something additional should be required.
(2) The records sought should bear directly on an issue raised when the court needs testimony. (3) The standard to be used for any psychiatric examination, or availability of records for the examiner, should be some evidence of parental "unfitness" as the guiding principle, rather than the general standard of the "best interests of the child," which would continue to be used in other areas of family law. (4) In some cases, the parties may be able to agree on an independent psychiatric evaluator for a nonbinding expert opinion. If the opinion is not acceptable to both sides, the case could proceed to trial for the psychiatrist to testify and be cross-examined. We hope these cases will be few in number.
REFERENCES Ace v. New York, 553 NYS 2d 605 (NY CT CL 1990). Allred v. Superior Court of CA, Orange County, NO LA 32124 (1987). Annotation (1990), Right to Requite Psychiatric or Mental Examination for Party Seekingto Obtain Custody of Child, In American Law Reports, 3rd edition, 99:268. Arsenaux v. Arsenaux, 428 So 2d 427 (LA 1983). Atwood v. Atwood, 550 S W 2d 465 (Ky 19) 6; Dawes v. Dawes, 45 u 50 2d 3II (LA 1984) Cerr denied 454 So 2d 18 (LA 1984). Baecher v. Baecber, 58 AD2d 821. 396 NYS 2d 447 (1977). Betty]B v. Division of Social Services, 460 A2d 528 (Del 1983). Bieluch v. Bielucb, 190 Conn 813, 462 A.2d 1060 (1983). Clark v. Clark, 220 NE 771, 371 NW 2d 749 (1985). Com ex ReI Gorton v. Gorton, 298 Pa Super 509, 444 A2d 1299 (1982). D v. D, 108 N] Super 149, 260 A2d 255 (1969). Frisard v. Frisard, 453 S02d 1150 (1984 Fla App 04 1984). Giraldo v. Giraldo, 85 App Div 2d 164 (1982, l st Dept), 447 NY S2d 466. Goldzband M.G. (1990), Confidentiality in disputes over custody and visitation. In: Review of Clinical Psychiatry and the Law, Vol. I, ed. R.I. Simon. Washington, 0 C: American Psychiatric Press, Inc., 1990). Grisso, T. (1986), Evaluating Competencies: Forensic Assessments and lnstruments, New York: Plenum Press. Harbin v. Harbin, 495 S02d 72 (ALA Civ App 1986). In re B, 482 Pa 471, 394 A2d 419 (1978). In re Lifichutz, 2 Cal 3d 415, 85 Cal Rptr 829, 467 P 2d 557 (1970). In re Marriage of Nordby, 705 P2d 277 (Wash App 1985). In re Welfare Siegried, 708 P2d 402 (Wash App 1985). Kashman v. Superior Court, 168 Cal Rptr 558 (1980). Knowles M.F. & McCarthy c.c. (1986), Parents, psychologists and child custody disputes: Protecting the privilege and the children. Ala. Law. Reo., 37:391-416. Kristensen v. Kristensen, 406 S02d 1210 (Fla App 05 1981). M v. K, 452 A2d 704 (N] Super 1982). Mascoli v. Mascoli, 132 App Div 2d 653 (1987, 2d Dept), 518 NYS 2d 25. Massachusetts General Laws Annotation (1985), Chapt. 233, 20B (e) (West Supp 1985). Matter of Dovidio, 56 Mise 2d 799, 288 NYS 2d 21 (1968). Matter of Von Goyt, 461 S02d 821 (Ala Ct App 1984). Oswald v. Diamond, 576 So. 2d 909 (Fla. Dist. Ct. App. 1991). Perry v. Finmano, 403 NYS 2d 382 (1978). Radiganv. Radigan, II 5 App Div 2d 466 (1985 2d Dept), 405 NYS 2d 703. Rosenblitt v. Rosenbiitt, 107 App Div 2d 292 (1985 2d Dept)' 486 NYS 2d 741. Shipman v. Div of Soc Seru, 442 A2d 101 (1981). Simek v. Superior Court, 117 Cal App 3d 169, 172 Cal Rprd 564 (1981).
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MALMQUIST Slovenko R. (1991), Child custody and the psychotherapist-patient privilege. J Psychiatry & Law, 19:163-178. Susan W v. RonaldA., (1990), 558 New York State Supreme Court 2d 813. Task Force Report 31 (1991), Disclosure of Psychiatric Treatment Records in Child Custody Disputes. Washington, DC: American Psychiatric Association.
From
Werner v. Kleiioer, (1985), 710 P 3d 1256 Kansas. Williams v. Williams, 550 SO 2d 166, (Fla Dist Ct App 1989). Yaron v. Yaron, 83 Mise 2d 276,372 NYS2d 518 (Sup Ct NY Co 1975). Zim u. Benezra, (1989), New York State Supreme Court 2d 893.
Pediatrics
Desmopressin Acetate and Nocturnal Enuresis: How Much Do We Know? M.E.K. Moffatt, M.D., M.Sc., ER.C.P.C., S. Harlos, M.D., A. J. Kirshen, M.D., ER.C.P.C., 1. Burd, M.S. Abstract. Objectives. Desmopress in acetate (DDAVP) is promoted to treat nocturnal enuresis but indications for its use are unclear .. We reviewed all randomized controlled trials to determine (1) short- and long-term efficacy, (2) responders, (3) doseresponse curve, (4) side effects, and (5) comparative efficacy with other treatments. Methods. A Medline search of the English language literature from January 1966 to August 1992, supplemented by contact with the drug companies, yielded 18 articles which were true randomized controlled trials (11 cross-over and 7 parallel studies). Results. The 18 randomized controlled trials included 689 subjects for most of whom some other type of treatment had failed. All studies found decreased mean frequency of wetting ranging from 10% to 91%, but only 24.5% of subjects achieved shortterm dryness, One study of DDAVP responders directly tested long-term dryness and 21 % stayed dry. In three studies that incidentally reported on long-term effects 5.7% stayed dry after stopping DDAVP. There was wide variation in the type of patient included. Seven studies addressed prognostic factors. Children more than 9 years old and with fewer initial wet nights do better. Four studies seem to include almost exclusively monosymptomatic children with nocturnal enuresis (ie, primary nocturnal enuresis, positive family history and no urinary symptoms). Results were no better than those which included mixed symptoms. Five studies attempted to address the dose-response issue. Despite some methodological issues, there is probably some dose-response effect. Side effects were infrequent in the 589 subjects who received DDAVP as opposed to placebo. No cases of water intoxication and no significant shifts in electrolytes were reported in the four studies which measured them. Nasal stuffiness, headache, epistaxis, and mild abdominal pain seem to be the only side effects noted, and these were uncommon. Only one study compared DDAVP with conditioning alarms. Alarm patients had 10% fewer wet nights and a better long-term result. Conclusions. DDAVP reduces wet nights in children for whom other treatments have failed but it produces complete dryness in a minority, and this is often a temporary effect. The literature focuses on short-term efficacy. The true role of DDAVP will be known when samples are carefully selected, prognostic factors are examined, and more comparisons with other treatments are conducted focusing on long-term outcomes. On the basis of current knowledge, DDAVP is inferior to conditioning alarms as a primary therapy. Pediatrics 1993;92:420-425.
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Psychiatric Confidentiality in Child Custody Disputes CARL P. MALMQUIST, M.D.
ABSTRACT Objective: The various legal and ethical issues that may arise in the context of divorce proceedings when custody of
a child is disputed are noted. A latent issue in such cases pertains to the treatment records of the parents, as well as the child, if any of the parties have ever been in any type of psychiatric treatment or mental health therapy. The principal parties may seek access to each others' records, and courts and attorneys may do so as well. Method: The issues that arise are explored by way of hypothetical clinical cases, as well as a consideration of leading appellate cases from different legal jurisdictions. Results: Access to psychiatric treatment records is often handled in diverse ways by clinicians in disputed custody proceedings. Their clinical experience offers little to guide them in this confusing area. To complicate matters, legal rulings may differ from one jurisdiction to another as well as within one jurisdiction. Positions taken vary along a continuum from the extremes of advocating that all past and current psychiatric treatment records be made available in such disputes, to no records being made available. Conclusions: In the state of current confusion and risk for psychiatrists, as well as past and present patients, a proposal is made that only when issues of "parental fitness" are raised should consideration be given to the release of psychiatric treatment records, in contrast to the traditional rule of "best interests of the child," which would continue to operate in other areas of family disputes. J. Am. Acad. Child Ado/esc. Psychiatry, 1994, 33, 2:158-168. Key Words: confidentiality, custody disputes, psychiatric records,
mental health of parents.
It is not uncommon for estranged parents, in the course of dissolving their marriage, to disagree with respect to who should have custody of their children. Such situations should concern every psychiatrist who has treated a parent or a child. A variety of approaches have been used. A traditional legal approach is for each side to hire an expert who testifies at a custody hearing. Another is for the two parties to retain a psychiatrist, or some other mental health professional, to assist in resolving the dispute with the hope of avoiding a court battle. However, if such mediation
Accepted October 12, 1992. Dr. Malmquist is Professor of Social Psychiatry, University of Minnesota, Minneapolis. The author acknowledges the Task Force on "Disclosure of Psychiatric Treatment Records in Child Custody Disputes" of the American Psychiatric Association, which Dr. Malmquist Chaired, and expresses his appreciationfor discussions with members of the Task Force. Reprint requests to Dr. Malmquist, University of Minnesota, 909 Social Sciences Building, Minneapolis, MN 55455, phone: 612-624-4300, FAX: 612-624-7020. 0890-8567/94/3302-0158$03.00/0©1994 by rhe American Academy of Child and Adolescent Psychiatry.
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does not succeed, a court hearing may ensue in which the psychiatrist will be asked for expert testimony on the custody issue. In some cases, law firms may have agreed on a psychiatrist to assist, with a customary proviso that the recommendation or opinion of the psychiatrist will not be binding. In these situations, all parties concerned, including attorneys, patientsclients, and psychiatrists, acknowledge that if an agreement cannot be reached, the psychiatrist will be expected to offer an opinion at the custody hearing. Apart from arrangements when parents separate, a different situation occurs when there has been previous treatment. Confidentiality issues then arise. Similar issues may arise if treatment is ongoing and records are sought. Psychiatric treatment may have gone on sometime earlier and ended, or it may have begun in the midst of marital turmoil and be continuing. One or more children may have been in treatment or in some form of family therapy. That psychiatric treatment records themselves could later become a matter of dispute has usually not been considered by anyone involved. One party, or both, may raise issues claiming
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that the best interests of the child will be served by the revelation of past psychiatric treatment records of the parentis). If only one parent has received treatment, the opposing parent may seek to have the record come into the proceedings. An attempt may also be made to bring in the treatment records of children, if the parents are differing with the hope that the records will contain damaging information about the opposite parent. To complicate matters, courts may seek access to psychiatric records, and the greater the protest about how embarrassing the records may be to a parent, the more strongly a judge may feel there is cause for concern (Slovenko, 1991). The issue in these cases revolvesaround the confidentiality of past or present psychiatric records, in contrast to situations when a psychiatrist is directly retained for trial purposes. The primary purpose of this article is to analyze the issues raised in such situations regarding the confidentiality of records from the perspective of the different interests involved: the two parents, minor children, and the court who represents the public. A description of how typical issues arise will exemplify the problems. The methodological approach is to use court cases to illustrate how confusion reigns in this difficult area. A paradigmatic situation is where one or both parents have been, or still are, in psychiatric treatment at the time their marriage is ending. The parties, through their attorney, want access to the psychiatric records of the other party, presumably because they believe the records will serve their interests. Some concerns may be legitimate because of past psychiatric difficulties of a parent, but an attorney may also be on a "fishing expedition" to obtain material. There may be an attempt to gain access to psychiatric records directly through the process of discovery by a court order. If this is not successful, an independent court-appointed psychiatric examiner may be sought, or someone who can function in lieu of a psychiatrist, under court appointment, to get access to the records. An immediate problem is trying to ferret out legitimate inquiries from inappropriate extension to obtain psychiatric files, psychological testing, counseling, or marital therapy records. When there is a marital dissolution, how can a determination be made that a sufficient threshold has been reached, to assess whether some type of mental disturbance is impinging on the capacity to parent? A
related question is how much information should be revealed. Treating psychiatrists often try diverse methods to protect their patients in these delicate situations. Some psychiatrists who treat patients with marital problems initially have tried to use an agreement that, in the event of a subsequent dispute, they would not have to testify or provide their records. Although this ploy attempts to distinguish a treatment situation from a consultative or testimonial role, in reality such agreements do not prevent courts from issuing orders to produce treatment records. At best, such agreements serve to put the parties on notice, but they may not alert the parties to the dangers of their records being revealed later. When the issue of seeking psychiatric records is raised in court, jurisdictions operate diversely, and within a jurisdiction judges may follow their own predilection. One court may indicate it wishes to review the psychiatric records to determine what is admissible. Another appoints a psychiatric consultant to evaluate the records in terms of relevance, and to submit a report to the court for a decision or argument. Others advocate a special master or mediator. A variation is for a guardian ad litem to assess whether the information might be harmful to a child. The purpose of a guardian ad litem is to protect the child from harm owing to release of information rather than to protect the interests of the parent or necessarily to address issues that are before court. The situation is one where it is never clear from one case to another what may be revealed. A number of questions arise. What is to be the time limit involved? If the parent was in treatment a year ago, is this material still current? How far back should records be made accessible before a time limit would run out, or would the records be considered relevant no matter what the time limit? The question is how relevant past records are to the present situation regarding custody of children. The argument for an independent psychiatric evaluator to examine psychiatric records in a custody dispute is that details that are relevant to a disposition could otherwise be missed. In the current milieu ofallegations of past sexual or physical abuse, all manner ofexpanding inquiries can occur. The inquiries may extend into the past, in terms of how long ago alleged behavior took place. Questions may arise about the validity of assessments that have been performed. Allegations need to
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be distinguished from legal findings on a particular case. Throughout such evaluations, the guiding principle for a psychiatrist is the current level of psychological functioning in terms of the degrees of symptomatic impairment that mayor may not be present, and the dynamics of interaction with the child. Subtleties in parental personality structures are not the key but rather the need to counter simply looking for data that can be used in contentious proceedings. The question is whether there is a compelling need to have past psychiatric records to evaluate the capacity of the parent with respect to current parenting abilities. Mental health professionals may have different views on revealing past mental health records in custody disputes. Within the psychiatric profession, those who primarily treat children may have different views from those psychiatrists who deal with adults. Some question whether women may be hurt more than men when treatment records are made public, based on the statistical fact that more women than men in the childbearing age range have been patients. It is disconcerting for psychiatrists, clinically as well as ethically, to find their records being made public in disputes that could harm their patients. Guardians ad litem for children may argue that minors have privacy rights to control revealing what parents may have said about them and vice versa. Revealing such material could be harmful to the child in the future. Assertions of childrens' rights over parents' records stand independently of the guardians' rights to control the treatment records. Issues of informed consent may arise. If treatment has been carried out without informing the patient that the records could be sought later, and they are released in a subsequent dispute, a breach of informed consent may have occurred. Does a warning need to be given at the commencement of treatment to evety adult patient who is a parent or who might become one? Even such a warning would not necessarily protect the interests of the child. The difficulty is that control over records is lost to the former patient and the treating psychiatrist. If a policy of revealing treatment records is in the ascendancy, something like a Miranda warning might be needed for adult patients beginning therapy. Exceptions under the privileged communication statutes may be provided for a justification to override parental objections if the interests of justice
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to the child seem to outweigh the potential harm from the release of information. ILLUSTRATING THE CONFLICT: HYPOTHETICAL CASES Example 1
A divorced couple with a joint custody arrangement split summer vacations with their 9-year-old daughter. The girl was in the next room when her father, who had been in psychiatric treatment for a major affective disorder, slashed his throat. She heard gasping and gurgling, found her father on the floor, and called her mother who arranged for police and an ambulance. The father was admitted for 6 weeks to a psychiatric unit. Subsequently, the mother sought to gain sole custody with supervised visitations for the father. The father objected to any change in the visitation arrangements. The dilemma arises about obtaining the psychiatric records for the 6 weeks of hospitalization, as well as the father's psychotherapy records for the 2 preceding years. Example 2
During custody proceedings, a mother alleged sexual abuse of the child by the husband. The father countered with allegations of physical abuse by the mother. Neither parent offered supporting evidence for the charges. Both parents demanded each other's psychiatric treatment records, and both announced the introduction of the child's treatment records into evidence. When such issues are raised in divorce or custody disputes, multiple agencies, as well as district attorneys' offices, may get involved. Questions arise as to whether a judge should order disclosure of the parents' records, in addition to permitting the parents to use the child's records. Example 3
A father had periodic psychotic episodes that responded to neuroleptic medication with occasional relapses. Neither parent had any past concern about his functioning with respect to their two elementary school-age children. In one intermittent psychotic state requiring hospitalization, bizarre ideas emerged about
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the children. He believed they were sending him covert messages about their wicked and evil ways, and that he was responsible for their sinful development unless steps were taken. After treatment, such thoughts were vague, but reappeared at times. At a divorce and custody dispute, a year after the last hospitalization, the mother sought sole custody of the children, and demanded access to the father's psychiatric treatment records from before, during, and after his hospitalization. Example 4
At the time of a divorce, a father acknowledged that he was bisexual. He had adopted a homosexual orientation, and an amicable divorce settlement was arranged with joint custody. A few years later, the mother became concerned about the father involving himself with a number of men in what she characterized as "promiscuous relationships." The mother contended that the impact of this lifestyle was a negative influence on the development of the children. After the divorce the father had begun seeing a psychiatrist, but it was not known why. The mother wished to make a change of custody arrangement and requested that the court grant her motion to disclose the father's treatment records. Example 5
Two college-educated parents had a 4-year-old daughter, with parenting arrangements based on housekeepers caring for the child. The mother suffered a setback at work and abruptly departed, leaving a note that she had a new job in a different city. She apologized for leaving so unexpectedly, wished her husband well, and asked him to take care of their daughter. Three months later, the mother telephoned to announce where she was, and wanted to begin visitation arrangements. The father, upset at the mother's departure, had entered psychiatric treatment for depression. Two years later, after the failure of mediation, both parents petitioned for primary (or sole) custody, with physical visitations arranged with the other parent. The father offered the records of his psychiatric treatment and requested his separated wife's psychiatric treatment records. She refused, arguing that the records were irrelevant to her claim for custody and not germane to her parenting. Affidavits were submitted by her and
her psychiatrist, swearing that nothing in her records related to her fitness as a parent. The court was asked to decide whether to accept these affidavits or the position of the father that the records of both parties be made available. Example 6
A couple with three children were involved in a custody dispute. The psychiatrist was first engaged by the father to do a custody study and subsequently by a court order on stipulation of both parties. Under the first arrangement, the father paid the psychiatrist, but after the court order, the mother paid. The psychiatrist met with the children for five sessions and with the mother for three sessions. The father's contacts involved several phone calls, and informal encounters when the children were taken to interviews. The father sought to block any testimony by the psychiatrist on the basis of psychiatrist-patient privilege barring such testimony. Questions arose as to whether material before the court order or all of the material should be barred, or whether the psychiatrist should be allowed to submit a report and testify, based on contacts with the father. One question was whether communications with the psychiatrist were related to diagnosis or treatment of a mental condition; if not, treatment of the father would not be seen as having had a psychiatristpatient relationship. On such matters, the question of the psychiatrist submitting a report and testifying were argued. In this case (Bieluch v. Bielucb, 1983) the court ruled that the father was not in a treatment relationship and could not claim a privilege. DISCUSSION OF LEGAL ISSUES The Parents
Courts have adopted diverse positions on whether a parent in a custody dispute may assert a privilege against testimony by someone in the mental health field who treated the parent. Its position also may vary depending on whether the professional is a psychiatrist, a psychologist, or a marriage counselor. Two extremes have emerged: that the parent's privilege is maintained or that a parent seeking custody puts his or her psychiatric status at issue and waives the privilege against confidentiality. The reasons given in support of these
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positions vary. The position arguing for maintaining confidentiality emphasizes parental privacy as paramount. It holds a substantial privacy interest in communications made during a treatment relationship. Confidentiality should then be maintained unless an overwhelming reason exists to waive the privilege. Only when a parent's current mental health is at issue and alleged to impinge on the welfare of the child, is it conceded that resorting to an independent examination conducted specifically for the trial court may take place. The issue of a psychiatrist conducting such an examination and offering an opinion, without access to past records, may then arise. If records are not provided, an additional question arises as to whether such an examination is adequate to offer a medical opinion. The Child
Related psychiatrist-privacy issues may arise regarding a child who has received treatment. Records from the psychiatrist treating the child may be sought, with or without parental psychiatric records. These records may be seen as useful either to an independent examining psychiatrist or to the court. The usefulness of the information obtained from the child's psychiatrist is pitted against the child's right to privacy. Does the child or a guardian have to consent for the treating psychiatrist to testify? How is the child to give such a consent? Is the child's competence to consent dependent on developmental age (Grisso, 1986)? The psychiatrist may feel differently about communicating information to the court than does an independent examiner. There may be a feeling that the child cannot give a meaningful consent and that a substitute consent by a guardian may not envisage the possible longrange detrimental effects. The same antinomies operate, whether the court respects the child's right to confidentiality or whether another independent inquiry should be made as to the necessity for obtaining the treatment records. Similar parallels to the parents operate when an independent examination of the child is sought in the absence of the past psychiatric records of the child. Is There Automatic Waiver?
Some appellate jurisdictions have considered whether the physician- or psychotherapist-patient privilege is
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automatically waived by a parent who seeks custody of a child, once the mental and emotional condition of a parent has been raised. About one-fourth of the states have addressed the issue, with myriad results. The issue frequently arises at the trial court level, but in the absence of guiding policy, the status of an automatic waiver remains uncertain. Three approaches have been tried. (1) When parents seek custody, their mental health condition is put at issue, and the doctor-patient privilege is waived. (2) Parents do not automatically put their mental health status at issue or waive the doctor-patient privilege during custody proceedings; however, to determine the best interest interests of a child, a court may resort to a court-appointed independent evaluation of the parent without making past records available. The limitations of such examinations have been noted. (3) The mental health of a parent is not automatically put at issue during custody proceedings, but when the current mental health of a parent related to the capacity to parent becomes a point of controversy, the doctorpatient privilege would yield at the court's discretion. The position is that only in extreme circumstances should the treatment records be made available. Whether the child's records would be made available would be decided separately from a decision about the status of the parents' records. In all these approaches a guiding principle governing policy decisions is lacking. LEGAL CASE ANALYSIS
A California case brought these issues to the attention of the American Psychiatric Association and led to the creation of a Task Force and publication of a Task Force Report (1991). The case of Allred v. Superior Court (1987) raised the issue of whether a mother, suing for custody of her child, automatically placed her mental condition at issue. If so, she waived her physician-patient and psychotherapist-patient privilege. When the mother argued against making her records available, the father countered by arguing she had tendered her general fitness as a parent and thereby waived the privilege to maintain confidentiality of treatment records. The respondent court held that initiating a custody suit triggers the patientllitigant exception to the physician- and psychotherapist-patient privileges, and the mother was ordered to disclose her medical and psychiatric records. This holding by the
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lower court promoted the entrance of the Northern California Psychiatric Society, the California Psychiatric Association, and the California Medical Association, acting as amicus curiae, to oppose the respondent court's decision. The Allred case was eventually settled without an appellate decision being rendered. It was a case of first impression, as only two other California cases had addressed the issue of the patient-litigant exception in custody and visitation proceedings. In these cases, the party moving to quash a subpoena to obtain medical and psychiatric records had not placed their physical or mental conditions at issue, and the patient/litigant exception did not apply (Annotation, 1990). The following case examples illustrate the problem. A father sought to modify custody and sought a subpoena to obtain medical records because the mother had drug overdosed (Kashman v. Superior Court, 1980). The court denied the mother's motion to quash the subpoena, and the court of appeals was petitioned to prevent disclosure of the records. The court issued a writ, holding that the physician-patient privilege applied in custody disputes, and the trial court could compel disclosure only when the patient's own action placed the records at issue. In this case, the father had raised the issue of the mother's medical condition, so the privilege applied. A similar case arose a year later (Simek v. Superior Court, 1981). Although the privilege has been created by legislatures, only Massachusetts has created a statutory exception to the privilege for custody cases (Massachusetts General Laws, 1985). This statute provides that in custody cases, upon a hearing in chambers, the judge can exercise discretion to determine whether the psychotherapist has evidence that may bear significantly on the person's ability to provide custody. If so, the judge has the power to decide whether it is more important to the welfare of the child that the communications be disclosed or that the relationship between the patient and the psychotherapist be protected. This balancing act places a burden on the judge to decide whether the best interests of the child supposedly outweigh the privacy interest of the parent. Leading appellate cases illustrate the existing diversity. A critique of the reasoning used in these appellate court decisions follows. In some states (Alabama, Illinois, Louisiana, Missouri, New York, Rhode Island, and South Dakota), it is recognized that a court has
the power through legislation or court rulings to order a psychiatric or mental examination for the purpose of properly awarding custody. In other jurisdictions, it has been held that a court has such power even apart from any statute (Alabama, Nebraska, and New York). Most revealing is the lack of uniformity on rulings and the reasons given for the rulings. Cases Where Custody Disputes Automatically Put the Mental Health of the Parent at Issue and Waive the Doctor-Patient Privilege
Some jurisdictions (Delaware, Kansas, Kentucky, Nebraska, and Louisiana) have, at times, gone in the direction of automatically triggering a waiver of the physician- and psychotherapist-patient privilege. These courts then view child custody as analogous to the general exception of a patient who becomes a litigant. In a Kansas case (Werner v. Kleiwer, 1985), the court relied on the statutory exception to the physicianpatient relationship to maintain no privilege for confidentiality where the mental condition of the parent was controlling and an element of the defense. Kentucky and Louisiana courts have interpreted their states' child custody statutes as containing an implicit waiver by holding that custody must consider the mental and physical health of all parties. Courts can then admit prior evidence of emotional conditions (Atwood v. Atwood, 1984). Yet, things are seldom that clear, such as in a Louisiana separation suit that was not seen as implying a waiver when the husband tried to admit records about his wife's abortion (Arsenaux v. Arsenaux, 1983). A Nebraska court adopted a conservative approach, noting it was not taking a position making relevant the information contained in the file cabinets of every psychiatrist who ever treated a litigant. To determine the admissibility of psychiatric records by a waiver would be initially entrusted to the discretion of a trial court (Clark v. Clark, 1985). This frequent approach turns matters over to a trial court judge who is endowed with the power to decide about revelations of past psychiatric records. The problem is that courts have few legal or social policies to guide them. Some jurisdictions admit materials and communications from marriage counselors, for example, because material from counseling is not encompassed under the privileged communications statute or is not viewed as treatment.
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Cases that decide the special doctor-patient privilege should be waived cite the traditional family court axiom about the best interests of the child. The court may fall back on ordering a court-appointed evaluator to assess the mental status of a parent who is or was a psychiatric patient. The evaluator may not necessarily be given the right to demand past records for purposes of the examination. A New York court took the position that a privilege claimed from a treatment relationship was not absolute (Perry v. Finmano, 1978). If it could be demonstrated that invasion of protected communications was necessary to the determination of custody, the rule of protecting such privilege from a physician, psychologist, or social worker could yield. The court considered the argument that custodial parents might forego obtaining needed psychiatric help because of concern that confidential material might be revealed later. To avoid this dilemma, the court offered a precautionary note that such privileges should not "cavalierly" be ignored. It must be shown beyond "mere conclusory statements" that resolution of the custody issue required revelation of the material. Earlier N ew York cases had established that past psychiatric records of a parent seeking custody were admissible only upon a showing that the records would be related to the custody question (Matter of Dovidio, 1968). A problem arose when a parent, whose medical records were released, later brought a civil lawsuit against whoever released or obtained the treatment records. Under the guiding principle of their materiality to disposition, such suits usually have not been successful, although they can be long and nasty. ANew York family court granted the request of a husband for his wife's treatment records at a psychiatric treatment center, and the center then sent the records to the husband's attorney. The wife later claimed this led her to abandon the custody battle. She sued the attorney, alleging he had obtained her psychiatric records illegally. The suit was dismissed when a court ruled that the records had been properly obtained under New York's Mental Hygiene Law. The wife then sued the state whose mental health office ran the psychiatric center, but the court ruled she had waived her privilege against disclosure of mental health records by seeking custody of the children. The principle was "confidentiality must yield to disclosure in the face ofa countervailing public interest" (Ace v. New York, 1990).
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New Jersey cases have found a limited waiver regarding psychiatric hospital records of a parent seeking custody. Their solution was for the court to examine the records and disclose the contents to both parties if the judge found some basis in the records for a decision regarding custody. However, in the same case, the court refused to order a physician, who had committed the mother to a hospital, to be deposed. Instead, it ruled that a court-ordered psychiatric examination was more appropriate (D v. D, 1969). Another New Jersey case involved communications to two psychiatrists specializing in marriage counseling. At that time, New Jersey had a statute that made communications "privileged" between a marriage counselor and client. The court found that the privilege resulted in a denial of due process for the child by blocking the introduction of material evidence for proper determination of custody, and the statute was found unconstitutional (M u. 1(, 1982). Although dealing with psychiatrists in the role of marriage counselors, this case raised the possibility that a statute providing for a physician-patient privilege could be subject to constitutional scrutiny because of interference with the child's rights. Cases Where Custody Disputes Do Not Automatically Put the Mental Health of the Parent at Issue or Waive the Doctor-Patient Privilege
Some states (Florida, Idaho, Georgia, and Missouri) do not automatically tender a parent's mental condition, but case law seems to allow an exception for significant aspects of a parent's mental state. A juvenile delinquency proceeding in Pennsylvania did not involve a custody dispute, but raised similar issues regarding confidentiality (In re B, 1978). A psychiatrist was found in contempt for refusing to provide the mental health records of a mother whose child was before the court. Pennsylvania's highest court held that although the doctor-patient privilege did not preclude disclosure of records, the mother's constitutionally based right to privacy barred disclosure. The position was that the juvenile court should have found a less intrusive method to evaluate the mother's fitness, such as a voluntary examination by a court-appointed psychiatric expert. Four years later, the Pennsylvania court held that a court's "delving into the private records of a custodial parent's psychiatric history is an impermissible invasion
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of privacy" (Com ex Rel Gorton v. Gorton, 1982). The court affirmed that the present and future mental health of the parent is to be emphasized rather than past mental health. Florida has had some controversial cases going against admission of psychiatric records. One dispute bypassed the usual justification of the best interests of the child and ruled that, in the absence of an allegation that either parent was "unfit," and in the absence of a "good cause" as to why a forced examination was necessary, a mental or physical examination should not be ordered (Kristensen v. Kristensen, 1981). Florida also would not order a psychiatric examination of a mother when a father had abandoned the mother and moved the child out of state, and there had been a psychiatric hospitalization of the mother 14 years earlier (Frisard v. Frisard, 1984). A Florida appeals court reversed a trial court's order requiring a father to undergo a psychological examination in a situation of many crosscomplaints concerning child custody and visitation (Williams v. Williams, 1989). The trial court was seen as abusing its discretion, because only the mother's self-serving pleadings had placed the father's mental health at issue. In another custody case, a trial court had permitted discovery of the mother's medical records on the basis that Florida did not recognize a general doctor-patient privilege. An appeals court reversed, holding that the psychotherapist-patient privilege protects discovery of records involving a mental or emotional condition (Oswald v. Diamond, 1991). Cases in Which the Mental Health of a Parent Is Not Automatically Put at Issue, But If a Controversy, the Doctor-Patient Privilege May Yield
Efforts to terminate parental rights raise analogous issueswhen psychiatric records are sought. An Alabama case involved allegations that a mother was mentally unstable as a former mental patient and did not provide adequate care for her child (Matter ofVon Goyt, 1984). Traces of a tranquilizer were found in the urine of the child. The mother's medical records were allowed into evidence, and parental rights terminated. The decision was upheld on appeal that cited the child's "best interests" doctrine with "substantial doubt" about the mother's ability to care for the child. The ramifications of this case have been critiqued (Knowles and McCarthy, 1986).
In another Alabama case, a father counterpetitioned for a custody modification based on the mental state of the mother. After an in-camera hearing, the court allowed access to the records (Harbin v. Harbin, 1986). Allegations of child neglect where circumstances clearly indicated neglect allowed admission of psychological records in Washington (In re the Marriage of Nordby, 1985). A termination of a parental rights case in Delaware allowed court perusal of mental health records when the parents opposed the petition (Shipman v. Division of Social Services, 1981). This outcome has the effect of enforcing compliance at the risk of records being inspected. A complicated Delaware case involved initial foster parents who later adopted five foster children. After one child had problems, the child was placed in another home by the Department of Social Services. The second foster parents tried to adopt the child, but the first foster parents initiated an action for visitation. Social Services petitioned to terminate completely the parental rights of the first adoptive parents. The family court permitted discovery of the mother's psychological history on the basis that the parents had raised the issue of their mental health when they petitioned for visitation (Betty IB v. Division ofSocial Services, 1983). Once parental rights have been terminated, for example, because of child abuse, it can be required that a mental health person be seen for evaluation and recommendation (In re Welfare Siegried, 1985). N ew York courts reflect confusion as noted above. In one case communications were held to remain privileged unless the status was waived by a client (Yaron v. Yaron, 1975). However, another case held that a psychologist-client privilege was automatically waived by the party seeking custody (Baecher v. Baecber, 1977). When a father sought custody of his three daughters, and the appellate court believed the decision would turn on psychiatric issues, it ruled that the trial court has abused its discretion in not ordering such an examination (Giraldo v. Giraldo, 1982). In another case, a ruling was that a party in a custody dispute need not be examined by the other party's psychiatrist if a Department of Social Services had conducted an examination (Rosenblitt v. Rosenblitt, 1985). A different case saw it as trial court error when a father's motion for the mother and child to submit to a psychiatric examination was denied, even though a family evaluation by a social worker was available (Radigan v.
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Radigan, 1985). Significant variables such as family conflict, alcohol or drug abuse, psychiatric hospitalization, past or present treatment, tend to make rulings unpredictable in the absence of policy. Outcome then seems dependent on a single variable or its absence, such as whether there is a history ofemotional problems in the parents or child (Mascoli v. Mascoli, 1987). The complexity of cases is revealed in a New York case in which the issue was the release of the mother's records related to alleged alcoholism and bulimia (Susan W v. Ronald A, 1990). The hospital refused release, claiming a Public Health ServicesAct prohibited release of substance abuse records without the patient's consent. New York's Mental Hygiene Law was raised, allowing disclosure without a patient's consent if a court specifically found that the interests of justice outweighed confidentiality. Federal regulations were cited to allow disclosure if it was found that the public interest outweighed the potential injury to the patient. After all this, the matter was left with the husband having permission to renew the motion but not to compel the wife to authorize release and the hospital having the authority to determine whether statutory criteria were met. A mother and her son were treated by a psychiatrist, but when the boy moved in with his father, a custody battle ensued. The psychiatrist later spoke with the father and the father's attorney. The mother brought a suit against the psychiatrist for breach of fiduciary duty, alleging the psychiatrist had disclosed privileged information that resulted in her losing custody. A summary judgment for the psychiatrist was granted on the basis that the psychiatrist actually had an obligation to confer with the father, and the court had ordered the psychiatrist to testify (Zim v. Benezra, 1989). DISCUSSION
The current situation is one of confusion about the confidentiality of all psychiatric records in custody disputes. Many jurisdictions have not guiding opinions, and courts and mental health professionals are left with great uncertainty. Even worse, patients are unaware of how their records may become public. In this confusing milieu in our litigious society, for offering an opinion or testifying, psychiatrists may find themselves defendants in a lawsuit. They also may have to explain the complexities of their professional role to a licensure
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board or ethics committee when the issues have not been resolved in any consistent manner by courts or social policies. Apart from the fact that everyone likes clarity, the question arises about the benefit of advocating a particular position. Although taking a position as a professional group can never dictate to a court, it is desirable to have a position with the goal of protecting parents, children, and psychiatrists who are faced with future uncertainty. At this time, custody disputes involving psychiatric records operate with no guidelines, and individual psychiatrists testify for one side or the other when retained by the parties or on a court order when mental health issues arise. We are in a position of waiting to see what courts may decide in the future and of trying to keep abreast of changing, and perhaps conflicting, rulings in one's particular jurisdiction. A second alternative would recommend the release of psychiatric records any time a current or former patient is in a custody dispute. The clinical basis for this position is that the records may be useful to a court in its custody decision. It is a position that may be comfortable to child psychiatrists who like to have records made available when asked for an opinion on custody (Goldzband, 1990). Such a position means that any present or prospective parent in treatment is operating blindly with respect to later release of their records. Some child psychiatrists advocate a quasiMiranda type of warning be devised so that in the event of a lawsuit, prospective patients can make an informed decision about whether they wish to pursue psychiatric treatment, given this limitation on future privacy. There is also the dilemma of the child. Whether the parents' records contain material on the child that could be embarrassing now (or later as an adult) must be considered. One recommendation is for a guardian ad litem or independent psychiatric examiner to review materials and give an advisory consultative opinion to the court. If a child has been in treatment in his or her own right, similar issues are relevant in terms of revealing these treatment records. However, the presumption that a guardian will make the best recommendation in such situations is unexamined. A third approach recommends that parents' past psychiatric records should almost always remain privileged in a custody dispute. It argues that it should be up to the court and the respective parties to agree about
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any contemporary examinations regarding psychiatric functioning, in the absence of past psychiatric records. Parents are seen as having a substantial privacy interest in not having to accept the possibility that their communications to a psychiatrist will later be made public in a custody dispute. The therapeutic alliance is predicated on the desirability of promoting openness so patients are not discouraged from seeking treatment because that privacy might later be abrogated. Some courts have countered this position by arguing that due process for children demands evidence about the parents to aid custody arrangements. In the oftcited Lifschutz case (1970), the California Supreme Court held that the psychotherapist-patient privilege was an aspect of a patient's privacy rights, but that the psychotherapist could be held to answer questions directly relevant to the subject of the suit. In that case, the plaintiff in a personal injury suit was claiming "extreme mental and emotional distress" as a result of an assault by the defendant. This article shows that in custody disputes no jurisdiction seems to grant an absolute right of privacy when it sees the need for psychiatric records to reach a decision. A fourth position proposes that, in light of diverse confidentiality and privilege rulings, the parents' privilege should be maintained in the large majority of foreseeable circumstances. If the court and the parties believe the issue of current personality functioning for a parent has a major bearing on how a custody decision should be made, a current appraisal and report to the court and to the respective parties can be performed by an independent psychiatrist. There is then no need to rely on previous treatment records. The appraisal could be by a court-appointed psychiatrist or one agreed to by the parties. Such a position acknowledges that future conflicts could arise and involve a party who does not wish to have past events revealed. The question becomes one of deciding whether the psychiatrist's treatment records are the proper vehicle for resolution of such an impasse, or whether courts should seek information elsewhere. Conclusions Before disclosure of records, the best compromise guidelines would appear to be (1) An allegation of mental disturbance should never suffice to open treatment records. Something additional should be required.
(2) The records sought should bear directly on an issue raised when the court needs testimony. (3) The standard to be used for any psychiatric examination, or availability of records for the examiner, should be some evidence of parental "unfitness" as the guiding principle, rather than the general standard of the "best interests of the child," which would continue to be used in other areas of family law. (4) In some cases, the parties may be able to agree on an independent psychiatric evaluator for a nonbinding expert opinion. If the opinion is not acceptable to both sides, the case could proceed to trial for the psychiatrist to testify and be cross-examined. We hope these cases will be few in number.
REFERENCES Ace v. New York, 553 NYS 2d 605 (NY CT CL 1990). Allred v. Superior Court of CA, Orange County, NO LA 32124 (1987). Annotation (1990), Right to Requite Psychiatric or Mental Examination for Party Seekingto Obtain Custody of Child, In American Law Reports, 3rd edition, 99:268. Arsenaux v. Arsenaux, 428 So 2d 427 (LA 1983). Atwood v. Atwood, 550 S W 2d 465 (Ky 19) 6; Dawes v. Dawes, 45 u 50 2d 3II (LA 1984) Cerr denied 454 So 2d 18 (LA 1984). Baecher v. Baecber, 58 AD2d 821. 396 NYS 2d 447 (1977). Betty]B v. Division of Social Services, 460 A2d 528 (Del 1983). Bieluch v. Bielucb, 190 Conn 813, 462 A.2d 1060 (1983). Clark v. Clark, 220 NE 771, 371 NW 2d 749 (1985). Com ex ReI Gorton v. Gorton, 298 Pa Super 509, 444 A2d 1299 (1982). D v. D, 108 N] Super 149, 260 A2d 255 (1969). Frisard v. Frisard, 453 S02d 1150 (1984 Fla App 04 1984). Giraldo v. Giraldo, 85 App Div 2d 164 (1982, l st Dept), 447 NY S2d 466. Goldzband M.G. (1990), Confidentiality in disputes over custody and visitation. In: Review of Clinical Psychiatry and the Law, Vol. I, ed. R.I. Simon. Washington, 0 C: American Psychiatric Press, Inc., 1990). Grisso, T. (1986), Evaluating Competencies: Forensic Assessments and lnstruments, New York: Plenum Press. Harbin v. Harbin, 495 S02d 72 (ALA Civ App 1986). In re B, 482 Pa 471, 394 A2d 419 (1978). In re Lifichutz, 2 Cal 3d 415, 85 Cal Rptr 829, 467 P 2d 557 (1970). In re Marriage of Nordby, 705 P2d 277 (Wash App 1985). In re Welfare Siegried, 708 P2d 402 (Wash App 1985). Kashman v. Superior Court, 168 Cal Rptr 558 (1980). Knowles M.F. & McCarthy c.c. (1986), Parents, psychologists and child custody disputes: Protecting the privilege and the children. Ala. Law. Reo., 37:391-416. Kristensen v. Kristensen, 406 S02d 1210 (Fla App 05 1981). M v. K, 452 A2d 704 (N] Super 1982). Mascoli v. Mascoli, 132 App Div 2d 653 (1987, 2d Dept), 518 NYS 2d 25. Massachusetts General Laws Annotation (1985), Chapt. 233, 20B (e) (West Supp 1985). Matter of Dovidio, 56 Mise 2d 799, 288 NYS 2d 21 (1968). Matter of Von Goyt, 461 S02d 821 (Ala Ct App 1984). Oswald v. Diamond, 576 So. 2d 909 (Fla. Dist. Ct. App. 1991). Perry v. Finmano, 403 NYS 2d 382 (1978). Radiganv. Radigan, II 5 App Div 2d 466 (1985 2d Dept), 405 NYS 2d 703. Rosenblitt v. Rosenbiitt, 107 App Div 2d 292 (1985 2d Dept)' 486 NYS 2d 741. Shipman v. Div of Soc Seru, 442 A2d 101 (1981). Simek v. Superior Court, 117 Cal App 3d 169, 172 Cal Rprd 564 (1981).
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From
Werner v. Kleiioer, (1985), 710 P 3d 1256 Kansas. Williams v. Williams, 550 SO 2d 166, (Fla Dist Ct App 1989). Yaron v. Yaron, 83 Mise 2d 276,372 NYS2d 518 (Sup Ct NY Co 1975). Zim u. Benezra, (1989), New York State Supreme Court 2d 893.
Pediatrics
Desmopressin Acetate and Nocturnal Enuresis: How Much Do We Know? M.E.K. Moffatt, M.D., M.Sc., ER.C.P.C., S. Harlos, M.D., A. J. Kirshen, M.D., ER.C.P.C., 1. Burd, M.S. Abstract. Objectives. Desmopress in acetate (DDAVP) is promoted to treat nocturnal enuresis but indications for its use are unclear .. We reviewed all randomized controlled trials to determine (1) short- and long-term efficacy, (2) responders, (3) doseresponse curve, (4) side effects, and (5) comparative efficacy with other treatments. Methods. A Medline search of the English language literature from January 1966 to August 1992, supplemented by contact with the drug companies, yielded 18 articles which were true randomized controlled trials (11 cross-over and 7 parallel studies). Results. The 18 randomized controlled trials included 689 subjects for most of whom some other type of treatment had failed. All studies found decreased mean frequency of wetting ranging from 10% to 91%, but only 24.5% of subjects achieved shortterm dryness, One study of DDAVP responders directly tested long-term dryness and 21 % stayed dry. In three studies that incidentally reported on long-term effects 5.7% stayed dry after stopping DDAVP. There was wide variation in the type of patient included. Seven studies addressed prognostic factors. Children more than 9 years old and with fewer initial wet nights do better. Four studies seem to include almost exclusively monosymptomatic children with nocturnal enuresis (ie, primary nocturnal enuresis, positive family history and no urinary symptoms). Results were no better than those which included mixed symptoms. Five studies attempted to address the dose-response issue. Despite some methodological issues, there is probably some dose-response effect. Side effects were infrequent in the 589 subjects who received DDAVP as opposed to placebo. No cases of water intoxication and no significant shifts in electrolytes were reported in the four studies which measured them. Nasal stuffiness, headache, epistaxis, and mild abdominal pain seem to be the only side effects noted, and these were uncommon. Only one study compared DDAVP with conditioning alarms. Alarm patients had 10% fewer wet nights and a better long-term result. Conclusions. DDAVP reduces wet nights in children for whom other treatments have failed but it produces complete dryness in a minority, and this is often a temporary effect. The literature focuses on short-term efficacy. The true role of DDAVP will be known when samples are carefully selected, prognostic factors are examined, and more comparisons with other treatments are conducted focusing on long-term outcomes. On the basis of current knowledge, DDAVP is inferior to conditioning alarms as a primary therapy. Pediatrics 1993;92:420-425.
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