The other day I wrote a blog on the physician- patient privilege in Wisconsin, and under what circumstances it can be waived. One of those circumstances under Wisconsin law does not cover when parties are contesting custody of their minor children.

So, the question becomes what is a party required to do when the court appointed guardian ad litem requests the parties to sign medical authorizations to release their physical or mental health records. We have already established as a legal basis, the waiver does not comply and you cannot be compelled by the court to release those records.

You are damned if you do, and damned if you don’t. If there is a legitimate question as to a person’s medical health, whether physical or mental, it may impact that person’s ability to take care of their minor children. It is understandable from the guardian ad litem’s perspective, why they would want access to those records.

If you take the position that your medical history is your own personal and private matters and refuse to cooperate with signing medical authorizations to release the records, you know the guardian ad litem is growing to draw the conclusion that there is something harmful in those records about you and that you are hiding something; failure to release those records to the guardian ad litem will negatively affect the guardian ad litem’s view of you and will have an adverse impact on your case.

If you cooperate and release those records or sign authorizations and there is something harmful about you contained in your medical records, it may also negatively impact the case and may be used against you in the custody case.

The other concern with releasing the records or signing medical releases, is who gets access to those records? Just the guardian ad litem? What about your spouse’s attorney? Will those records be used as evidence in the courtroom if the case goes to trial? These are all valid concerns.

So, what should a party do when requested to sign medical authorizations to the guardian ad litem? We usually instruct our clients engaged in a custody battle to cooperate with the guardian ad litem with the following restrictions;

1. The medical authorizations be addressed to specific medical providers, so that the guardian ad litem doesn’t get to conduct a “fishing expedition.”

2. That the medical releases be limited in duration to the last several years and expires one year after signing it upon completion of the case, whatever occurs first.

3. That the medical records only be seen and provided to the guardian ad litem and copies not provided or accessible to opposing counsel.

4. That we be provided duplicate copies of any records obtained.

5. That the records may not be used in court during any court proceeding without a specific order of the court as to how those records may be used and may be given copies of those records. You could even make the argument that the records may not be used at all in any court proceedings.

Whether you should or shouldn’t sign medical releases to the guardian ad litem is a very important issue that one should discuss with their family lawyer depending on the issues in the case, and what may be contained in the records that may be damaging to the case. With proper safeguards in place, the records can be provided to the guardian ad litem, while still protecting the medical privacy of the patient.