BETH HICKS, LCSW
v.
STATE OF FLORIDA, AND ROBERT STEVEN PRICE

Fla. 1st DCA | 2019-07-23
No. 18-4527
Florida District Court of Appeal, First District (2019)

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Synopsis

# Legal Brief **Beth Hicks, LCSW v. State of Florida and Robert Steven Price**, 1D18-4527 (Fla. 1st DCA July 23, 2019): The court held that a trial court's order compelling production of therapy notes for minor children violated the patient-psychotherapist privilege where the record failed to establish a clear, explicit waiver of the privilege, despite the therapist's initial listing as a state witness and the custodial parent's participation in discovery proceedings without asserting the privilege.

Headnotes

[1] Certiorari is the proper vehicle to review discovery orders compelling the production of information protected by the statutory psychotherapist-patient privilege.

[2] Irreparable harm would result from the disclosure of privileged therapy notes.

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Topics
Adequate Remedy On Appeal In Camera Inspection Waiver Of Privilege Irreparable Harm

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Opinion of the Court

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA _____________________________

No. 1D18-4527 _____________________________

BETH HICKS, LCSW,

Petitioner,

v. STATE OF FLORIDA, and ROBERT STEVEN PRICE,

Respondents.

_____________________________ Petition for Writ of Certiorari—Original Jurisdiction. Kevin Grover, Judge.

July 23, 2019 PER CURIAM.

Robert Steven Price is criminally accused of sexually assaulting his daughter and stepdaughter, both of whom became patients of Beth Hicks, LCSW, a psychotherapist whose therapy notes Price successfully sought in proceedings below. Hicks claims the trial court’s order, which compelled her to produce therapy notes for the two family members as well as a sibling (all under age 12), violates the patient-psychotherapist privilege.1

2

To warrant relief from the order, Hicks must establish that the trial court’s order departs from the essential requirements of law and causes material injury to Hicks2 or her patients throughout the remainder of the proceedings for which no adequate remedy is available on appeal. J.B. v. State, 250 So. 3d 829, 831 (Fla. 3d DCA 2018) (noting that certiorari “is the proper vehicle to review discovery orders compelling the production of information that is protected by the statutory psychotherapist- patient privilege”). The record establishes that irreparable harm would result from disclosure of the privileged therapy notes at issue in this case. The only question is whether the trial court’s ruling, which ordered copies of all therapy notes for all therapy sessions “for all three children at issue in this matter and treated by [Hicks]” to be provided to the court for in-camera inspection, is invalid because of the lack of a clearly established waiver of the privilege by the three children.

At best, the record reflects that Hicks participated in a deposition without first asserting the privilege until ordered to provide therapy notes (she was listed initially as a state witness, but later removed). In addition, the custodial parent participated in a deposition and a hearing without asserting her child’s privilege. At no point does it appear that any explicit waiver occurred or was intended, nor were therapy notes divulged. Cf. H.J.M. v. B.R.C., 603 So. 2d 1331, 1334 (Fla. 1st DCA 1992) (privilege waived where information sought had already been voluntarily disclosed prior to raising objection). Instead, these limited litigation activities, without more, fail to clearly establish a waiver of the children’s psychotherapist-patient privilege with Hicks, one that exists to encourage patients to seek counseling and condition, . . . between the patient and the psychotherapist[.] . . . This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.” § 90.503(2), Fla. Stat. (2019).

PETITION GRANTED. WOLF, MAKAR3, and BILBREY, JJ., concur.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

Footnotes
1 Florida law provides that a “patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional
2 The psychotherapist-patient privilege may be claimed by the “psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.” Id. § 90.503(3)(d).
3 treatment for psychological harm. As Hicks’s counsel notes, “Why would a child victim of sexual abuse be open, honest or even willing to seek necessary treatment if he or she believes that others, including the perpetrator of the sexual abuse would have unlimited access to those mental health care records?” We conclude that absent a clear and unequivocal waiver of the psychotherapist-patient privilege at issue, the compelled disclosure of the confidential therapy notes for the three minor children “is exactly the type of fishing expedition that this Court, the United States Supreme Court, and our sister courts have strongly cautioned against.” J.B. 250 So. 3d at 833.

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