On May 26, the Superior Court issued an en-banc ruling on whether a court could order a custody claimant to release records of her treatment, which were drawn up as part of an MHPA trial. The unanimous decision of the nine-member jury was that these records should not be disclosed.

The position seems pretty straightforward. The Lackawanna County court faced allegations of chronic instability in a mother as part of an emergency request for special assistance. Given the tough stopping provisions of Section 7111 of the Mental Health Act (Title 50), the court appointed a curator ad litem to isolate the “confidential records” from the father while the records could be reviewed by the guardian. In the meantime, the court also ordered a psychological evaluation of the parties in accordance with Pa.RCP 1915.8.

The conclusion that MHPA records should not be made available had many supportive elements. In the absence of an “express waiver” by the party whose records are requested, the law clarifies that legislative policy has been to provide confidentiality as a means of promoting treatment and that the making of these records undermines that confidentiality. In addition, an updated assessment is the best evidence, if any, of the current mental health problem. The court also stressed that participation in a custody case cannot be construed as a waiver of the right to assert confidentiality.

In cases like this, the main courses are prone to errors on the side ordering the disclosure. This opinion makes it clear that such an approach is a reversible error and a disclosure order is subject to immediate appeal under Pa.RAP 313. In his honor, the court of first instance suspended the disclosure order until it was appealed. Frankly, based on this opinion, one has to wonder whether an agency with records under 50 Pa.CS 7111 should obey such an order, even if residence is refused or never requested.

This case is consistent with MM v. LM, 55 A.3d 1167 (Pa. Super. 2012) and Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009). It makes it clear that appointing a guardian ad litem is no way out and that a current “best interest” analysis in custody proceedings does not override a statutory confidentiality provision.

CL versus MP 2021 Pa. Super. 107 (May 26, 2021)

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