          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-4527
                  _____________________________

BETH HICKS, LCSW,

    Petitioner,

    v.

STATE OF FLORIDA, and ROBERT
STEVEN PRICE,

    Respondents.
               _____________________________

Petition for Writ of Certiorari—Original Jurisdiction.
Kevin Grover, Judge.

                           July 23, 2019


PER CURIAM.

     Robert Steven Price is criminally accused of sexually
assaulting his daughter and stepdaughter, both of whom became
patients of Beth Hicks, LCSW, a psychotherapist whose therapy
notes Price successfully sought in proceedings below. Hicks claims
the trial court’s order, which compelled her to produce therapy
notes for the two family members as well as a sibling (all under
age 12), violates the patient-psychotherapist privilege. 1



    1 Florida law provides that a “patient has a privilege to refuse
to disclose, and to prevent any other person from disclosing,
confidential communications or records made for the purpose of
diagnosis or treatment of the patient's mental or emotional
     To warrant relief from the order, Hicks must establish that
the trial court’s order departs from the essential requirements of
law and causes material injury to Hicks 2 or her patients
throughout the remainder of the proceedings for which no
adequate remedy is available on appeal. J.B. v. State, 250 So. 3d
829, 831 (Fla. 3d DCA 2018) (noting that certiorari “is the proper
vehicle to review discovery orders compelling the production of
information that is protected by the statutory psychotherapist-
patient privilege”). The record establishes that irreparable harm
would result from disclosure of the privileged therapy notes at
issue in this case. The only question is whether the trial court’s
ruling, which ordered copies of all therapy notes for all therapy
sessions “for all three children at issue in this matter and treated
by [Hicks]” to be provided to the court for in-camera inspection, is
invalid because of the lack of a clearly established waiver of the
privilege by the three children.

     At best, the record reflects that Hicks participated in a
deposition without first asserting the privilege until ordered to
provide therapy notes (she was listed initially as a state witness,
but later removed). In addition, the custodial parent participated
in a deposition and a hearing without asserting her child’s
privilege. At no point does it appear that any explicit waiver
occurred or was intended, nor were therapy notes divulged. Cf.
H.J.M. v. B.R.C., 603 So. 2d 1331, 1334 (Fla. 1st DCA 1992)
(privilege waived where information sought had already been
voluntarily disclosed prior to raising objection). Instead, these
limited litigation activities, without more, fail to clearly establish
a waiver of the children’s psychotherapist-patient privilege with
Hicks, one that exists to encourage patients to seek counseling and


condition, . . . between the patient and the psychotherapist[.] . . .
This privilege includes any diagnosis made, and advice given, by
the psychotherapist in the course of that relationship.” § 90.503(2),
Fla. Stat. (2019).
    2 The psychotherapist-patient privilege may be claimed by the
“psychotherapist, but only on behalf of the patient. The authority
of a psychotherapist to claim the privilege is presumed in the
absence of evidence to the contrary.” Id. § 90.503(3)(d).

                                  2
treatment for psychological harm. As Hicks’s counsel notes, “Why
would a child victim of sexual abuse be open, honest or even willing
to seek necessary treatment if he or she believes that others,
including the perpetrator of the sexual abuse would have
unlimited access to those mental health care records?” We
conclude that absent a clear and unequivocal waiver of the
psychotherapist-patient privilege at issue, the compelled
disclosure of the confidential therapy notes for the three minor
children “is exactly the type of fishing expedition that this Court,
the United States Supreme Court, and our sister courts have
strongly cautioned against.” J.B. 250 So. 3d at 833.

    PETITION GRANTED.

WOLF, MAKAR 3, and BILBREY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Catherine B. Chapman and Jaken E. Roane, Guilday Law, P.A.,
Tallahassee, for Petitioner.

Caren Bennett, Panama City, and J. Shad Redmon, Assistant
State Attorney, Port St. Joe, for Respondents.




    3 Judge Makar, who was substituted for an original panel
member, has reviewed the briefs, record, and video recording of
the oral argument

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