This is surely not an area where
we can allow perceptions to be corrupted to a point where
one is presumed guilty until proven innocent.
Setting aside ruthless zeal, a
divorce court system design that is based on aggressive
client advocacy, and in some cases, blatant malice, what
safeguards do you ever truly have after turning your private
medical and mental health records over to the opposition?
Attorney Harvey I. Hauer here
addresses in this “Professor Lex” column a response to
suggestions for obtaining a parent’s otherwise privileged
medical records for the court to “consider the mental and
physical health of the parties involved in determining the
best interests of the child.”
Mr. Hauer answers:
In Navarre v Navarre, 191
Mich App 395; 479 NW2d 357 (1991), defendant argued
that the Child Custody Act waives the physician-patient
privilege in that the physician-client privilege is
created by a general statue, whereas the Child Custody
Act is a specific statute. The defendant also argued
that the Child Custody Acts requirement that the court
consider the mental and physical health of the parties,
should be interpreted as mandating waiver of the
physician-patient privilege with respect to the parties
of a custody dispute.
Here is the salient part of the
Court of Appeals subsequent Opinion on this divorce matter
(as cited by Hauer):
All privileges exist at the
expense of suppressing valuable evidence. Indeed, were
this not the case, there would be no need for privileges
at all. In this context, potentially valuable evidence
regarding the condition of parties to a custody dispute
must be sacrificed to the perceived greater good of
protecting physician-patient relationships.
Amen.
—posted by Dell Deaton @2:53 PM EST 5/20/2008
OS 2531.80
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