Edward R. Weinstein, Esq.

In a New Jersey Divorce or Custody Hearing, are my physicians or psychologists allowed to testify?

As a New Jersey Custody & Divorce Lawyer, this is a question I am asked on a weekly (if not daily) basis. First of all, it is of the utmost importance that the court preserves the privilege between doctors their patients. The purpose of having such privileges is generally to protect patients inner thoughts not meant to be disclosed and to encourage an open relationship between the expert and his or her patient so that vital information can be uncovered. It is rare that such a privilege will be violated, but in cases where there is a legitimate need for such information to be disclosed, a court might necessitate that an expert testify in court.

What constitutes a patient or physician?

Before such a privilege can even be preserved, a court must first determine if either person involved constitutes a patient or physician pursuant to the law. In determining whether a person constitutes a patient or a physician for the purpose of the New Jersey statute 2A: 84A-22.1, courts look to the following definitions:

(a) For a person to be a patient, he or she must for the exclusive purpose of obtaining preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his or her physical or mental condition, consult a physical
(b) For a person to be a physician, he or she must be authorized to practice medicine in New Jersey or state in which the examination takes place

What must a court find to guarantee that a patient and physician privilege exists?
All patients in civil actions have a patient-physician privilege to refuse to disclose and prevent a witness from disclosing a communication if the patient asserts the privilege. If a patient does not assert such privilege, it is waived. However, in addition to a patient asserting his or her patient-physician privilege, a court must find that a set of criteria has been met. First and foremost, the communication between the patient and physician must have been a confidential one. If initially the communication was not private, it is not protected under the patient-physician privilege.

Next, the patient or the physician must have reasonably believed that the communication was necessary to assist the physician in diagnosing the patient’s mental or physical condition. In addition to a diagnosis, the communication between the patient and physician must have been one that helped the physician provide the patient with a treatment.
Furthermore, pursuant to 2A:84A-22.2, the witness must be the following:

(a) He or she must be the holder of the privilege; or (b) At the time of the communication, he or she must have been the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted; or (c) He or she must be any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician’s duty of non-disclosure by the physician or his agent or servant
Lastly, a court must find that the claimant is the holder of the privilege or a person authorized to claim the privilege for him or her before a patient-physician privilege can officially exist.

What are the contents of a valid disclosure authorization?
A valid disclosure authorization must be in writing before any patient-physician privilege can be terminated. If the authorization is made in any way other than in writing, it is invalid and will be completely disregarded. Once the authorization is in writing, however, it must then indicate the nature of the information to be revealed, the person who is allowed to reveal such information, and to whom such confidential information is to be revealed to. Additionally, a court requires that in the written authorization specific purposes for which the information will be used are laid out, at the time of disclosure and any other time following disclosure.

Moreover, for an authorization of disclosure to be legitimate, it must stipulate that the patient is aware of his or her statutory privilege to confidential communications between a patient and licensed psychologist and that consent can be revoked at any time.

Additionally, the authorization must be signed by the patient or the person authorizing the disclosure. Pursuant to subsection (e) of 45:14B-36, if the patient is adjudicated incompetent or is deceased, the authorization shall be signed by the patient’s legally authorized representative. When the patient is more than fourteen years of age, but has not yet reached the age of majority, the authorization shall be signed by the patient and by the patient’s parent or legal guardian. When the patient is less than fourteen years of age, the authorization shall be signed only by the patient’s parent or legal guardian. Finally, in addition to the required signature or signatures, the date upon which the authorization was signed must appear on the disclosure authorization as well.