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Depp vs. Heard, Mental Health, and What Is Admissible in Court

Physician-patient privilege fosters open dialogue. In court, that could change.

Key points

  • Someone embattled in court proceedings must understand that his or her present and prior mental state will be considered.
  • This information also may be introduced in court, in motion papers, and even submitted as evidence during a custody trial.
  • To fully understand a family situation, the court may order a therapist to turn over their patient’s most private communications.
Maksim Shchur/Getty Images
It is fairly common to have mental health records submitted as part of the evidence presented in custody proceedings.
Source: Maksim Shchur/Getty Images

The ongoing civil lawsuit between Amber Heard and Johnny Depp—the latter has sued the former, his ex-wife, for defamation—is a reminder that a plaintiff or defendant’s present or prior mental state, and relevant communications with physicians or therapists, can be introduced as evidence or testimony during a trial.

Physician-patient privilege is an important right that enables mental health practitioners and their patients to foster an open and honest dialogue, and to keep records that are presumed to be private and protected.

But in court, that could all change.

Present and Prior Mental State

Someone embattled in court proceedings must understand that his or her present and prior mental state will be considered, including but not limited to any history of mental health disorders and addiction. This includes information that was previously considered confidential. In order to properly understand the domestic situation, the Court may order a therapist, including a marriage counselor, to turn over the most private communications, diagnoses, and other sensitive information to the spouse’s counsel and/or the Court. Further, either party may call expert witnesses to opine on a party’s mental and emotional state.

In this case, Dr. Lauren Anderson, the couple’s former marriage counselor, stated in sworn deposition testimony that there was mutual abuse between Depp and Heard. Anderson’s deposition testimony was played during the defamation trial.

Further, Dr. Shannon Curry, a licensed psychologist with over 15 years of experience and an expert called by Depp, testified that one psychiatric diagnosis she attributed to Amber Heard was Borderline Personality Disorder (BPD). Heard’s psychologist, however, has testified that she suffered from Post Traumatic Stress Disorder—as a result of abuse from Depp.

What Is Admissible in Court?

That seems like a lot of personal information that you might think would never come to light in a courtroom because the protections of physician-patient privilege. But it happens, and not just in high-profile cases. In fact, it is fairly common in custody proceedings when one or both spouses have a history of mental health challenges—or even simply are known to have been seen by a therapist or counselor—to have mental health records submitted as part of the evidence presented. It is also fairly common to have expert testimony from mental health professionals.

In these cases, it is common for the parents who want custody to essentially waive physician-patient privilege, because in determining custody, courts must determine what is in the best interest of the child, which means significant transparency for any potential guardian regarding health and mental health matters. In order to fully understand the family situation, then, a court may order a therapist to turn over their patient’s most private communications, diagnoses, and other sensitive information to the spouse’s counsel and/or the court.

This information also may be introduced in court, in motion papers, and even submitted as evidence during a custody trial. Further, during a psychological or psychiatric evaluation in a custody matter, mental health professionals may be required to turn over all medical records and notes, pursuant to HIPAA forms, to the evaluator.

In some instances, courts have ordered an in-camera review of several years of a person’s psychiatric records, which is legal parlance for a process in which a judge privately looks at confidential, sensitive, or private information to determine which material is relevant and which may be shared with opposing counsel.

In one case, a mother’s medical records indicated that she had been hospitalized 15 times over the course of her decade-long mental illness. The court concluded that due to her extensive mental health history, she was unable to provide proper and adequate care of her child.

In another custody trial I was involved with, a parent was ordered by the court to disclose every hospital, clinic, and rehabilitation center in which they sought treatment over a five-year period. All of this “protected” information was entered into evidence at trial to assist the court in determining custody in the best interest of the child.

How can you prepare?

  • Your mental health professional must be prepared to hand over all the notes and files that are relevant to the patient in question if asked to do so by the court.
  • A parent who is being asked to provide this information needs to ensure their attorney is completely apprised of all of the issues that will be revealed so that the legal team can be prepared for questions about the information and issues that come from it.

Whatever role you play in this scenario, it is an undoubtedly very difficult time for all parties. Please make sure you take care of yourself and your children during an incredibly stressful time.

This is not meant to serve as legal or mental health advice as each situation is unique. Please seek out a local attorney and or mental health professional for advice specific to your situation.

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