More Therapeutic, Less Collaborative? Asserting the Psychotherapist-Patient Privilege on Behalf of Mature Minors

Abstract

Published in a Symposium titled The Future is Now: Collaborative and Therapeutic Family Law, More Therapeutic, Less Collaborative? Asserting the Psychotherapist-Patient Privilege on Behalf of Mature Minors argues that youth should have the right to confidentiality in records pertaining to their psychotherapy treatment. I develop this thesis primarily through the lens of three Florida cases that have affirmed the right to privacy in these records for mature youth. The article expands on arguments that the Children & Youth Law Clinic made in an amicus brief that it submitted in one of these cases in 2003. I couch the argument for patient confidentiality in social science, procedural due process and constitutional guarantees of privacy, and analyze how respect for a minor’s confidentiality benefits both the youth and society as a whole.

Although the piece is grounded in Florida law, my thesis seeks to contribute to the national discourse on children’s rights and falls squarely within contemporary debate regarding the competition between the best interests of the child and the child’s right to autonomy. Building upon the minor’s constitutional right to pursue an abortion without parental consent, I contend that judicial trends are and should be moving toward higher state and federal protections for minors to control aspects of their lives, particularly in the medical arena.

However, I also acknowledge the complexity of litigation involving family disputes over confidentiality. I draw attention to the importance of procedural due process and therapeutic jurisprudence in developing the attorney-child relationship and resolving legal disputes, including those involving access to records. The paper emphasizes the value of the child’s voice and validation in the identification of appropriate and therapeutic outcomes in these cases and the role of children’s lawyers in family court advocacy. Remaining attentive to the importance of the decision-making process and not just the outcome, the article concludes by encouraging collaboration and family preservation, even in the face of intense family conflict.

Keywords: psychotherapist-patient privilege, parent; adolescent, therapeutic jurisprudence