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Using therapist as part of defense against TPR petition waived therapist-patient privilege

State v. Mary G., 2015AP55, 2015AP56, & 2015AP57, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity

At the grounds phase of the trial on a TPR petition, the circuit court properly ordered Mary G. to provide the State with notes from her mental health treatment provider and appropriately considered evidence regarding Mary’s failure to manage her medications.

While therapy notes are ordinarily privileged under § 905.04(2), there’s an exception to this privilege for communications relevant to a patient’s physical, mental or emotional condition when the patient “relies upon the condition as an element of the patient’s claim or defense….” § 905.04(4)(c). That exception applies in this case:

¶13      Here, the conditions of the children’s return hinged on Mary G.’s ability to comply with her mental health needs. Mary G. called her therapist to testify in her defense. A significant part of her defense to the continuing CHIPS ground was her compliance and progress in therapy with Shorehaven [Behavioral Health]. By relying on her therapist’s notes herself, Mary G. made the privileged communications an element of her defense. Thus, the communications were not privileged.

And given that the conditions of return required Mary to participate in treatment for managing her mental health needs, the court could consider her medication compliance even though there was no specific language in the conditions of return requiring her to take medication. (¶15).

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