On May 26, the Superior Court issued an en banc ruling addressing whether a Court can order a child custody litigant to turn over records of her treatment compiled in the context of a MHPA proceeding. The unanimous decision of the nine-judge panel was that those records were not subject to disclosure.
The opinion appears fairly definitive. The Lackawanna County trial court was faced with allegations of a mother’s chronic instability in the context of an emergency petition for special relief. Faced with the hard stop provisions of Section 7111 of the Mental Health Procedures Act (title 50) the Court appointed a guardian ad litem to insulate the “confidential records” from the Father, while allowing the records to be reviewed by the guardian. Meanwhile, the Court also ordered psychological evaluation of the parties under Pa.R.C.P. 1915.8.
The conclusion that MHPA records should not be made available had many supporting elements. Absent an “explicit waiver” by the party whose records are sought, the statute makes clear that the legislative policy was to provide confidentiality as a mean to promote treatment and that production of these records undermines that confidentiality. Moreover, a current evaluation represents the best evidence of what is the current mental health issue, if any. The Court was also emphatic that participation is a custody case would not be construed as a waiver of the right to assert confidentiality.
In cases such as this, there is a tendency on the part of trial courts to error on the side ordering disclosure. This opinion makes clear that such an approach is a reversible error and an order mandating disclosure is one subject to an instant appeal under Pa.R.A.P. 313. To its credit, the trial court did stay the disclosure order pending appeal. Candidly, on the strength of this opinion one must ask whether an agency with records compiled under 50 Pa.C.S. 7111 should comply with such an order even if a stay is denied or never sought.
This case is consistent with M.M. v. L.M., 55 A.3d 1167 (Pa. Super. 2012) and Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009). It makes clear that appointment of a guardian ad litem is not a path around the problem and that a current “best interests” analysis in a custody proceeding does not overrule a statutory provision mandating confidentiality.