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Sooner or later in their careers, most psychotherapists and counselors are likely to receive a subpoena requesting client records. Therapists often react with dread. They often react with a fight or flight response when served with a subpoena and either ignore the subpoena or simply provide the requested records. Either response may be illegal, unethical and counter-clinical. Responding to subpoenas can be complicated and complex since legal requirements sometimes conflict with ethical guidelines and copyrights laws.
Guidelines: How to Respond to a Subpoena
- A Subpoena is a legal document or order requiring an individual (psychotherapist) to appear and testify in court and/or to produce documents. Subpoena duces tecum is an order requiring a witness (psychotherapist) to bring specific documents, reports, tapes or any other specified records that are in the possession or under the control of the witness to a certain place at a certain time.
- When receiving a subpoena, neither ignore nor send records. A therapist does not need to automatically respond to the subpoena and uncritically send the records. However always respond, even by stating something like “I cannot comply”. Again, consult with an attorney.
- Therapists should not release confidential and/or privileged information or surrender any documents or records to the person serving the subpoena no matter how aggressive the request is. The subpoena document should be accepted, and the psychologist should then evaluate the situation and, when necessary, obtain legal counsel regarding applicable law and resulting obligations.
- When being served with a subpoena, therapists should not acknowledge that they know or treated the person whose records are being subpoenaed.
- Do not attempt to avoid being served a subpoena.
- After receiving a subpoena therapists should carefully determine its validity and, most importantly, who initiated it.
- Find out if the subpoena was initiated by a judge/court, attorney, etc.
- Obtaining an authorization to release information from clients is one of the better and simpler ways to deal with subpoenas.
- Contacting the clients, when appropriate, is very important. Sometimes clients are willing to sign an authorization to release information and want the therapist to respond fully to the subpoena.
- Unless therapists obtain either an authorization from the patient or an order from a judge, therapists are advised to consult with an attorney before releasing any information.
- If there was more than one person/client involved in treatment, seek authorization to release information from each patient before releasing records.
- Before responding to a subpoena consider the source of the subpoena, client’s welfare, other people’s welfare, state and federal laws (e.g., HIPAA, Patriot Act, copyright laws), codes of ethics and, where applicable, your contractual relationships to test publishers.
- Sometimes providing only a summary of the treatment rather than appearing in person or providing the entire file may be acceptable to clients, attorneys and courts.
- When appropriate and legally allowed, provide the minimum information necessary. However, some situations may demand that you release the entire file.
- Never alter records.
- If a signed authorization to release form is included, but the therapist believes that the material may be clinically or legally damaging, s/he should discuss these issues with the client before releasing the records.
- When the subpoena request includes tests’ protocols, record forms, raw data or entire test kits, be aware and cautious of copyright laws, your contract with the publisher as well as federal and state laws. Consult with expert counsel and/or explain to the judge, if and when necessary, about the potential conflict between the subpoenas, professional codes of ethics, state and federal laws and copyrights laws.
- Be aware that the Patriot Act may force you to disclose any or all clinical information while at the same time forbid you to inform your client about the disclosure. This can create a very complicated situation where therapists act more like informers rather than psychotherapists. Consult, consult and consult.
- Do not release the HIPAA’s Psychotherapy Notes (if you have any) unless specifically ordered by the court or have received a written authorization to release this part of the records. It is my general recommendation that therapists do not keep Psychotherapy Notes (as defined in HIPAA regulations). (For more HIPAA information, go to: https://www.zurinstitute.com/hipaa.html.)
- Each situation is different and these general guidelines are neither a substitute for legal consultations nor apply to all situations. When necessary, consult with knowledgeable experts, attorneys or the attorney of your malpractice insurance.