(p. 564) Dealing with Subpoenas
Receipt of a legal document commanding you to appear at a legal proceeding or turn over your records to attorneys, especially when unexpected, can be a very stressful experience. This brief guide can help you understand the nature and meaning of a subpoena and possibilities for response. However, law and procedures vary from jurisdiction to jurisdiction and psychologists work in a wide range of settings beyond solo private practice as a psychotherapist. The nature of the setting may dictate the procedure to follow in determining the response. It is always wise to consult with an attorney who is knowledgeable about your local jurisdiction and particular situation.
Neither ignore nor immediately respond to a subpoena. Determine whether the subpoena is valid, what is being requested, and whether your client has consented to the waiver of any privilege and the release of the information or records.
Questions about Subpoenas
What is a Subpoena or a Subpoena Duces Tecum?
A subpoena is a legal document requiring a person to produce documents, appear and give testimony at a deposition or trial, or both. From the Latin meaning “under penalty bring with you,” a subpoena duces tecum requires the person to bring specified records, reports, tapes, documents, or other tangible evidence to court or a deposition. In many jurisdictions, a subpoena can be issued as a matter of routine by a court clerk at an attorney’s request or even signed directly by the requesting attorney. The subpoena states the name of the court and issuing authority, the title of the legal action, and the time and place of testimony or production of documents. In many instances, even if the subpoena is not termed a “subpoena duces tecum,” the requesting party may only be seeking records and will not actually require that the psychologist appear and give testimony. In addition, often the records specified in a subpoena or subpoena duces tecum can be produced to the requesting party by mail without actual attendance at court or the stated location. Normally, the original record or documents need not, and should not, be provided. A notarized or authenticated copy of the records as they are normally kept will generally suffice. An attorney can help you determine what to produce if your records are held electronically.
How Does a Court Order Differ from a Subpoena?
It is important to understand the difference between a subpoena and a court order. Unlike a subpoena, a court order is generally issued by a judge only after a hearing. The court decides (p. 565) what information or records are protected and what are not. The court order compels disclosure of even privileged information unless the order is appealed to a higher court.
Must I Comply with the Subpoena?
Failure to comply with a valid subpoena could lead to being held in contempt of court. However, simply because you have been served does not mean that the subpoena is valid, or that you must testify or produce all materials requested. Even if the subpoena is valid, it may be possible to limit or better define the request or negotiate an alternative response.
What Do I Do When Served?
The subpoena document should be accepted, and you should then consult legal counsel regarding applicable law and resulting legal obligations. Do not disclose any information concerning whether the subpoena actually involves someone whom you have treated. The setting in which you work may help determine your next step. For example, as the first step in determining how to respond, psychologists working in hospital settings may be required to inform and consult with the hospital’s general counsel who may be involved throughout the process. On rare occasions, a subpoena may arrive at a clinician’s office in the hands of a person seeking immediate access to records. Under such circumstances it is reasonable to inform the person: “I cannot disclose whether or not the person noted in the subpoena is now or ever was my client. If the person were my client, I could not provide any information without a signed release from that individual or a valid court order.”
What Issues are Involved in Determining whether the Subpoena is Valid?
A subpoena may be invalid for a variety of reasons, including if it is not issued by the proper authority, is not properly “served,” does not provide proper time frames for response, is issued outside the proper reach of the issuing authority, or causes an undue burden on the person required to respond. You will need to consult with your own attorney or possibly the relevant client’s attorney regarding the validity of the subpoena. If the subpoena is invalid, a motion to quash the subpoena can be filed or in some instances the requesting attorney can simply be informed in writing that the subpoena is invalid and no response will be forthcoming.
What Should I Do if the Subpoena is Determined to Be Valid?
You will need to obtain your client’s permission prior to releasing the documents or testifying. You should obtain this permission in writing even when written consent is not required by law. (If you are covered by HIPAA’s Privacy Rule, specific requirements for the written authorization may apply, and it is not recommended that you simply rely on the assurances and documentation of the requestor that reasonable efforts have been made to provide notice to your client.) Contact your client and explain the situation, including what information or records would be released and the possibility of further release once you are required to testify or documents leave your hands. Ask for permission to talk with his or her attorney. Ask the client’s attorney to move to modify or quash the subpoena, or work out any privilege issues and/or a more limited response with the opposing attorney. The involvement of the client’s attorney helps to ensure that the client’s legal interests have been fully considered.
What if I Am Worried about the Impact of the Release on My Client or Others?
Even if a signed release form is included, if you believe that the material may be clinically or legally damaging, discuss these issues with the client. It is not unreasonable for the clinician to personally confirm the client’s wishes, especially if the content of the records is sensitive. You may also be able to negotiate to limit the information released such as by releasing (p. 566) more limited records or producing a summary report as a substitute for the records, or obtain an agreement to protect the records from further release. Consider any possible privilege or confidentiality issues related to others named in the records as well.
What Do I Do if Test Data or Test Materials are Requested?
If the subpoena is valid and the client consents to the release, test data (test information specific to a client such as raw and scaled scores, responses, and notes related to the client) that do not disclose any important information concerning the test itself may be released as part of the response to the subpoena. However, if a valid subpoena seeks actual test materials sold only to professionals (such as test kits, manuals, or test questions and protocols) or raw test data that are merged with test materials (e.g., individual client record forms also containing test questions or stimuli), additional consideration should be given to the release even if the client has consented. Many test publisher websites contain helpful information concerning test security as well as contact information for the test publisher’s privacy officer or general counsel. One of these individuals can be an excellent resource for help in protecting the test materials. Consider obtaining a letter or other assistance and then speaking to the requestor and, if necessary, the court, concerning limiting the response or placing the information under a protective order that limits access and re-release. Another option after explaining the need to protect the test materials is to offer to provide the raw data to a qualified professional. However, in response to a court order, both raw test data and test kit materials would ultimately have to be produced if attempts to limit the court order fail.
What Do I Do if the Client Does Not Wish to Have the Records or Information Disclosed?
Without admitting that the subpoena actually involves someone whom you have treated, you may need to assert the client’s privilege by informing the requestor, usually through an attorney, that the information is privileged and that you do not have consent to release documents or testify absent a legally recognized exception to that privilege. Again you may be able to work with the client’s attorney to assert the client’s legal privilege, quash the subpoena, or modify the subpoena. Keep in mind, however, that the client’s attorney works for the client and you may need your own attorney if your interests begin to diverge from those of your client. Ultimately the psychologist may need to seek a ruling from the court concerning the release.
What if the Subpoena Requires My Actual Attendance and I Cannot Attend on the Specified Date?
Consider contacting the lawyer who issued the subpoena to explain your dilemma and ask that the date be changed. If the attorney refuses and the schedule is unreasonable (e.g., if you do not have time to cancel appointments or provide patient coverage), if appropriate, tell the attorney that you plan to contact the judge in the case in order to complain about the inadequate notice. This approach often stimulates increased flexibility by the attorney. If necessary and appropriate, do contact the judge and explain your scheduling problem. Except in unusual circumstances, the judge is likely to be accommodating.
References and Readings
American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1048–1051.Find this resource:
American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993–1004.Find this resource:
American Psychological Association Practice Organization. (2008). How to deal with a subpoena. Retrieved February 2013, from www.apapracticecentral.org/update/2008/12-17/subpoena.aspx
Campbell, L., Vasquez, M., Behnke, S., & Kinscherff, R. (2010). APA ethics code commentary and case illustrations. Washington, DC: American Psychological Association. (p. 567) Find this resource:
Committee on Legal Issues, American Psychological Association (2006). Strategies for private practitioners coping with subpoenas or compelled testimony for client records or test data. Professional Psychology: Research and Practice, 37, 215–222.Find this resource:
Committee on Psychological Tests and Assessment, American Psychological Association. (1996). Statement on disclosure of test data. American Psychologist, 51, 644–668.Find this resource:
Committee on Psychological Tests and Assessment, American Psychological Association. (2007). Recent developments affecting the disclosure of test data and materials: Comments regarding the 1996 statement on the disclosure of test data. Retrieved February 2013, from www.apa.org/science/programs/testing/test-disclosure-statement.pdf
Koocher, G. P., & Keith-Spiegel, P. C. (2008). Ethics in psychology and the mental health professions: Standards and cases (3rd ed.). New York: Oxford University Press.Find this resource:
Chapter 104, “Dealing with Licensing Board and Ethics Complaints”
Chapter 105, “Defending Against Legal (Malpractice and Licensing) Complaints”
Chapter 106, “Minimizing Your Legal Liability Risk Following Adverse Events or Patient Threats”
Chapter 127, “Elements of Authorization Forms to Release or Request Client’s Records”
Chapter 128, “Understanding Fundamentals of the HIPAA Privacy Rule”