What document, issued by a judge, compels the recipient to do or not do something?

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Overview

CE credits: 1

Exam items: 10

Learning objectives: After completing this course participants will be able to:

1. Recognize ethical challenges psychologists should consider when responding to subpoenas that request disclosure of client records or test data.
2. Understand the factors that determine whether a subpoena's request for information carries the force of law.
3. Weigh options for opposing or limiting production of client records or test data in response to a subpoena requesting production of those materials.

Over the course of their careers, many psychologists will receive subpoenas directing them to disclose or testify about a client's records or test data. Such requests can put psychologists in a quandary: As practitioners, they are well versed in the ethical, professional and legal obligations related to maintaining patient confidentiality, so how can they release such records?

In an effort to guide psychologists in this area, APA's Committee on Legal Issues recently updated its article on understanding subpoenas, seeking to offer strategies that psychologists may use to respond to subpoenas or compelled court testimony. While this article is not intended to establish standards of care or conduct for practitioners, it seeks to address several common questions psychologists have when responding to such legal requests. It is important to note that this article does not provide legal advice, nor is it intended to be or substitute for the advice of an attorney.

Psychologists who receive a subpoena or other legal process that requires or is likely to require production of client/patient records or test data, manuals, protocols, or other test information are encouraged to consult legal counsel who can review the pertinent law and facts and provide appropriate legal assistance.

Understanding subpoenas

From the legal system's perspective, the more relevant information that a judge or jury considers in a court case, the fairer the decision. To obtain this material, the court may issue subpoenas (legal commands to appear to provide testimony) or subpoenas duces tecum (legal commands to appear and bring along specific documents). A court may also issue a court order requiring a party to provide testimony or produce documents.

Unless the issuing attorney or court excuses the psychologist, the psychologist must respond to a subpoena — that is, to be at a particular place at a particular time. Responding to the subpoena, however, does not necessarily mean that the psychologist must disclose confidential information requested in the subpoena. Before a psychologist does so, he or she should ensure that the subpoena is valid and that the conditions for disclosing confidential information are met — such as with a client's consent, a protective order or other legal mandate. In contrast to a subpoena, when a court order for testimony or documents is issued and any attempt to have the court vacate or modify its order has been unsuccessful, a psychologist may be held in contempt of court if he or she fails to comply with the court order.

Unfortunately, the demands of the legal system may conflict with psychologists' responsibility to maintain client confidentiality. This responsibility arises from tenets of good clinical practice, ethical standards, professional licensing laws, and other applicable statutes and legal precedent. In many contexts, client information may also fall under an evidentiary privilege, which protects the client information from being considered as evidence by the legal fact-finder in the case.

Most state and federal jurisdictions allow a client to prevent confidential material that he or she has conveyed to a psychologist from being communicated to others in legal settings, but there are some variations from state to state and between some state and federal courts, and there are significant exceptions (such as cases where the client herself has put her mental health at issue in the litigation). In general, the psychologist has a responsibility to maintain confidentiality and to assert the psychotherapist–patient privilege on behalf of the client unless the client has explicitly waived privilege or signed a valid release, a legally recognized exception to privilege exists, or the court orders the psychologist to turn over the client's information.

The clinical record, any separately kept psychotherapy notes, client information forms, billing records and other such information usually may be turned over to the court with appropriate authorization by the client or with a court order. Psychologists required to comply with provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) would need a HIPAA-compliant authorization form to release such information, and a separate authorization for release of psychotherapy notes if those notes are developed in strict compliance with the HIPAA definition of psychotherapy notes.

Otherwise, notes of psychotherapy sessions are treated in the same manner as the remainder of the clinical record or file. In cases in which clients do not authorize release of their records, HIPAA details procedures that a psychologist may follow upon receiving a subpoena not accompanied by a court order to disclose those materials. These issues emphasize an important practice tip: At the beginning of treatment, psychologists should inform their clients in the informed consent document and first session discussions of the risk that their confidential information may be disclosed in response to a subpoena or court order.

A request for psychological test data and test materials present other concerns. Although a client's test data (including raw and scaled scores and client responses to test questions or stimuli) may be released in response to a proper subpoena, the disclosure of test materials (including manuals, instruments, protocols and test questions) may require the safeguard of a protective order from the court. The APA Ethics Code requires psychologists to "make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law . . ." in order to not threaten the validity of psychological tests and their value as a measurement tools (APA Ethics Code, Standards 9.04, 9.11).

Psychologists have numerous ethical, professional and legal obligations related to the release of client records, test data and other information in the legal context. Many of these obligations may favor disclosure, including, in particular, the general obligation of all citizens to give truthful and complete testimony when required to do so. But there are often conflicting duties and principles that favor withholding such information. These may include obligations to:

• Clients or other individuals who receive treatment and/or are given psychological tests.
• The public (to avoid public dissemination of test items, questions, protocols or other test information that could adversely affect the integrity and continued validity of tests).
• Test publishers, including contractual obligations between the psychologist and test publishers not to disclose test information and obligations under the copyright laws.
• Other third parties, such as employers.

A special type of third-party obligation may arise in forensic contexts if, for example, a psychologist performed work with a litigant for an attorney. In such cases, the key concern is whether records from that work with the litigant is protected from disclosure under the attorney work product privilege.

Strategies for dealing with subpoenas

Psychologists, in consultation with an attorney if needed, should consider six strategies when issued a subpoena:

1. Determine whether the request for information carries the force of law

The psychologist must establish whether he or she has received a legally valid demand for disclosing test data and client records. For example, to be valid, a subpoena should generally allow sufficient time to respond to the demand for materials and provide for some time for the opposing side to quash such a demand if appropriate. If a demand is not legally enforceable for any reason, then the psychologist has no legal obligation to comply with it and may have no legal obligation to respond.

Even a demand that claims to be legally enforceable may not be. For example, the court issuing the subpoena may not have jurisdiction over the psychologist or his or her records: A subpoena issued in one state, for example, may not be legally binding on a psychologist who lives and works in another state. Or, the subpoena may not have been properly served to the psychologist — some states may require service in person or by certified mail. A psychologist should consult with an attorney in making such a determination.

If the psychologist concludes that the demand is legally valid, then a formal response to the attorney or court is required, whether it is compliance with or opposition to the demand, in whole or in part. A psychologist's obligation to respond to the subpoena is not necessarily the same as those under a court order (see below under "File a motion to quash the subpoena or file a protective order").

2. Contact the client

Clients may have a legally protected interest in preserving the confidentiality of their records. So, if a psychologist receives a subpoena or notice requiring that he or she divulge a client's records or test data, the psychologist may discuss the implications of the demand with the client (or his or her legal guardian). The psychologist may also consult with the client's attorney when appropriate and with the client's valid consent.

When talking with the client, the psychologist should explain which information has been demanded, the purpose of the demand, the entities or individuals to whom the information is to be provided, and the possible scope of further disclosure by those entities or individuals. After that discussion, a legally competent client or the client's legal guardian may consent to allow the psychologist to produce the data. Generally, such consent is required to be in writing, which helps to avoid future conflicts or legal entanglements with the client over the release of confidential tests or other records. The client's consent may not, however, resolve the potential confidentiality claims of third parties (such as test publishers).

The psychologist may want to emphasize to the client that when he or she agrees to release information requested, he or she cannot specify or limit which information is released. Rather, the entire record — including psychotherapy notes, billing records, administrative notes and more — will be available. The scope of the release may be the subject of negotiation among attorneys, however, so if the psychologist believes that a release would harm the client, he or she should voice his or her concerns and object to the release on that basis.

3. Negotiate with the requester

If a client does not consent to release the requested information, the psychologist — often through counsel — may seek to prevent disclosure through discussions with legal counsel for the requesting party. The psychologist's position in such discussions may be bolstered by legal arguments against disclosure, including the psychologist's duties under evidence rules regarding psychotherapist–patient privilege. These rules often allow the psychologist to assert privilege on behalf of the client in the absence of a specific release or court order. (Some possible arguments are outlined in the section below, "Consider possible grounds for opposing or limiting production of client records or test data.") Such negotiations may explore whether there are ways to achieve the requesting party's objectives without divulging confidential information, perhaps by disclosing nonconfidential materials instead. Psychologists may also be able to negotiate to avoid compelled testimony.

4. File a motion to quash the subpoena or file a protective order

If negotiation is not successful, it may be necessary to file a motion for relief from the obligations imposed by the demand for confidential records.

A motion to quash is a formal application made to a court or judge to have a subpoena vacated or declared invalid. There may be grounds for asserting that the subpoena or request for testimony should be quashed, in whole or in part. For example, the information sought may be protected by the psychotherapist–client privilege and therefore may not be subject to discovery, or it may not be relevant to the issues before the court (see below in the section "Consider possible grounds for opposing or limiting production of client records or test data"). This strategy may be used alone or in combination with a motion for a protective order.

A motion for a protective order assumes that the psychologist will produce the information asked for by the subpoena but asks that the court protect it from the untoward consequences of disclosing information. The primary focus of this strategy is to prevent or limit the number of people who see sensitive client and test information. A motion for protective order can establish procedures to note the materials as confidential and have them placed under seal, which prevents their disclosure to the public.

Generally, the motion may state that the psychologist is ethically obligated not to produce the confidential records or test data or to testify, unless compelled by the court or with the consent of the client. It may include a request that the court consider the psychologist's obligations to adhere to federal requirements (such as HIPAA) and to protect the interests of the client, the interests of third parties (such as test publishers), and the public's interest in preserving the integrity and continued validity of the tests themselves. The motion might also attempt to suggest ways to minimize the adverse consequences of a disclosure. For example, the psychologist may suggest that the court:

• Direct the psychologist to provide test data only to another appropriately qualified professional designated by the court or by the party seeking the information.
• Limit the use of client records or test data to prevent wide dissemination. For example, the court might order that the information be delivered to the court, be kept under seal, and be used solely for the purposes of the litigation and that all copies of the data be returned to the psychologist after the litigation is terminated.
• Limit the categories of information that must be produced. For example, client records may contain confidential information about a third party, such as a spouse, who may have independent interests in maintaining confidentiality, and such data may be of minimal or no relevance to the issues before the court.
• Determine for itself, through a nonpublic hearing or a review by the judge in chambers, whether the use of the client records or test data is relevant to the issues before the court or whether they might be insulated from disclosure, in whole or in part, by the therapist–client privilege or another privilege (such as attorney–client privilege).
• Deny or limit the demand because it is unduly burdensome on the psychologist (see, e.g., Federal Rule of Civil Procedure 45(c)).
• Shield "psychotherapy notes" if the psychologist keeps separate psychotherapy notes as defined by the Privacy Rule (see Security and Privacy, 2015).

5. Determine whether to testify

If a psychologist is asked to disclose confidential information during questioning at a deposition, he or she may refuse to answer the question only if the information is privileged. If there is a reasonable basis for asserting a privilege, the psychologist may refuse to provide test data or client records until ordered to by the court.

A psychologist who refuses to answer questions without a reasonable basis may be penalized by the court, which may include requiring the psychologist to pay the requesting parties' costs and fees in obtaining court enforcement of the subpoena. For these reasons, it is advisable that a psychologist be represented by his or her own counsel at the deposition.

6. Consider possible grounds for opposing or limiting production of client records or test data

There are several options for resisting a demand to produce confidential client information. They include that:

• The court does not have jurisdiction over the psychologist, the client records, or the test data or the psychologist did not receive a legally sufficient demand asking him or her to produce the information.
• The psychologist does not have custody or control of the records or test data that are sought — for example, they may belong to the psychologist's employer, not to the psychologist.
• The therapist–client privilege insulates the records or test data from disclosure. The rationale for the privilege, recognized in many states, is that the openness necessary for effective therapy requires clients to expect that all records of therapy, contents of therapeutic disclosures and test data will remain confidential. Disclosure would be a serious invasion of the client's privacy. The psychologist is under an ethical obligation to protect the client's reasonable expectations of confidentiality (APA Ethics Code, Ethical Standards, Section 4). There are important exceptions to this protection that negate the privilege. For example, if a client or former client is a party to the litigation and has raised his or her mental state as an issue in the proceeding, the client may have waived the psychotherapist-patient privilege. This varies by jurisdiction, with most jurisdictions holding a broad patient-litigant exception to privilege, with a few construing the patient-litigant exception much more narrowly. It is important that the psychologist be aware of the law in the relevant jurisdiction since this may ultimately control the issue about release of (otherwise) confidential client information. In this circumstance, the fact that a client who is a party to a legal case does not want to consent to release of information may not ultimately be dispositive on the issue. In such a case, the psychologist should discuss the issue of potential patient-litigant exception with the client's attorney, to determine if the records will need to be turned over due to the exception and to obtain any needed authorizations from the client.
• The information sought is not relevant to the issues before the court.
• Public dissemination of test information, such as manuals or protocols, may harm the public interest because it may affect responses of future test populations.
• Test publishers have an interest in the protection of test information, and the psychologist may have a contractual or other legal obligation (e.g., copyright laws) not to disclose such information.
• Psychologists have an ethical obligation to protect the integrity and security of test information and data, including protecting the intellectual property and unauthorized test disclosure, and to avoid misuse of assessment techniques and data. Psychologists are also ethically obligated to take reasonable steps to prevent others from misusing such information.
• Some court rules allow the party receiving the subpoena to object to the subpoena's demand or ask that the demand be limited on the basis that it imposes an undue burden on the recipient (see, e.g., Rule 45(c) of the Federal Rules of Civil Procedure, 2014).

Ultimately, the judge's ruling controls in a court. Psychologists who are not violating human rights and who take reasonable steps to follow Standard 1.02 of the Ethics Code and inform the court of their requirements under the Ethics Code will not be subject to disciplinary procedures for complying with a court order directing them to produce information. Protecting patient privacy when the court calls can be complicated. To respond appropriately, psychologists should weigh ethical responsibilities and legal demands. Psychologists who have questions should consult legal counsel.

This article is condensed from "Strategies for Private Practitioners Coping With Subpoenas or Compelled Testimony for Client Records or Test Data or Test Materials," which appeared in Professional Psychology: Research and Practice, Vol. 47(1), Feb 2016, 1–11. To read the full article, which includes all citations and appendices, go to www.apa.org/about/offices/ogc/private-practitioners.pdf (PDF, 260KB).

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