It’s a busy Monday. You arrive in the office to a stack of mail. Thankfully you have left yourself half an hour for a cup of coffee while sorting through your voicemail and your post mail. Half way through this quiet time, you open a letter from a lawyer to find a subpoena duces tecum. In this same letter, no release is provided by your past client.
During the years, most of the psychologists who have consulted us about subpoenas feel visceral fear at such a moment. This comment sets out an approach that protects the privilege of your client, keeps you in control of your client’s record, and provides a step by step process to ethically respond.
In the above situation, do not ignore the correspondence from the attorney. The subpoena requires a timely answer. Typically, a lawyer will send a subpoena to obtain information related to civil litigation. Although many subpoenas are written in a manner that strike psychologists as threatening, it just is a legal notice that information is being sought and is expected to be delivered within a certain time period. Ideally, your client and you are ready for the request for information from the attorney. However, as with the above situation, the conflict emerges when the psychologist’s client has not provided a release to the information. Within most jurisdictions of North America, psychologists are obligated to protect the privilege of the client (Glosoff, Herlihy, Herlihy, and Spence, 1997), unless a release is provided or a court has issued an order requiring the psychologist to release information. In most jurisdictions, the psychologist is both obligated to protect the client by not releasing the requested information and simultaneously obligated to respond to the attorney’s subpoena duces tecum.
Practice Tip 1
Initially treat all requests for information, regardless of the source of the request, with the same necessary pre-requisite release of information from your client.
Psychologists establish relationships of trust with those with whom they work (APA Ethical Principles of Psychologists and Code of Conduct, 2002, Principle B). Maintaining client confidentiality is one way in which psychologists enact the principle of fidelity. As directed by our Code of Conduct (APA, 2002, Standards 4.01 and 4.05), psychologists protect client information and do not release information unless the client has provided the psychologist with the appropriate consent to release confidential information. Yet, here you sit on a Monday morning with a duly executed subpoena duces tecum, pondering the question of whether it is possible to remain faithful to your client (APA, 2002, Principle B) by upholding the client’s confidentiality (APA, 2002, Standards 4.01 and 4.05) while adhering to the requirements of the law (APA, 2002, Standard 1.02), all the while avoiding harm (APA, 2002, Standard 3.04) and remaining true to the principle of beneficence? (APA, 2002, Principle A). Operationalize the first tip by contacting the client regarding the attorney’s request for information. Record your effort at making contact and how the client responded.
Practice Tip 2
Be personally assured that your client is fully informed of the ramifications should he/she be inclined to provide a consent to release confidential information.
Take the opportunity to clarify confidentiality, the treatment rational behind privilege, and the possible harm that might arise from an unspecified authorization to release confidential information. Informed consent to all aspects of the treatment relationship is best maintained through repeated review of each treatment activity as it occurs. Most clients are not fully aware of the amount of information a psychologist holds and the extent to which confidential information might travel should such privilege not be closely guarded. Discuss with your client alternatives to full compliance with the subpoena.
Practice Tip 3
Do not treat a subpoena in the same manner that you would treat a court order. They require a different response.
If a court order directs the release of the records, respond by releasing the records as directed. If the document is a mere subpoena, treat it as a notice, and always reply. Subpoenas have a timeline within which the psychologist must respond. Though it is imperative that you provide a response to the attorney within the time limit, your response does not require releasing the information as requested in the subpoena. You may refuse to comply with the subpoena based upon the laws regulating psychologists within the State or Provincial jurisdiction. You also may lay out a reasonable course of action rather than follow any of the directives within the subpoena. Do so by preparing a written response to the subpoena, in the form of an affidavit or declaration. Use the legal form your jurisdiction prefers to protect against perjury. The affidavit or declaration would convey the rationale for not releasing the records. This course of action should be sent to all of the lawyers in the case, and the clerk of the Judge. It shows that the psychologist is acting in good faith, and serves as an inexpensive option to moving to quash the subpoena. This later option requires appearing at a hearing, and should occur with a lawyer representing you.
For instance, filing a declaration in the State of Washington has protected hundreds of mental health records without moving to quash any subpoena. The declaration has shifted the burden back onto the lawyer seeking the record. It has worked well because the law related to mental health records is often misunderstood by practicing lawyers within Washington. Most of the lawyers have not pursued court orders once having received the decalartion. When they have done so, Judges, in rare exceptions, have ordered the release of the mental health records. In all cases, no costs have ever been charged against the psychologist filing the original declaration, nor has any psychologist been held in contempt. An example of such a declaration can be seen on the pdf here.
Practice Tip 4
Obtain consultation to review the affidavit or declaration before sending it to all of the lawyers involved in the case, and the clerk of the Judge, if a Judge is involved at that point in time. Do not consider any attorney or any psychologist as equally knowledgeable when obtaining consultation.
Do not SEEK COUNSEL from just any mental health professional or lawyer. Please call the volunteer specialists who serve in you State, Provincial, and Territorial Association Ethics Committees, or a J.D./ Ph.D trained clinical psychologist in your jurisdiction that know the nuances about the laws related to psychological practice. Also, free legal counsel is provided by the two largest malpractice carriers that serve psychologists.
Practice Tip 5
Once the consultation is obtained, please send a contemporaneous written communication to the person that provided your counsel.
You should memorialize the facts relied upon by the consultant, and the opinions provided. The consultation shows a transparent decision making process while attempting to meet psychological ethics and the legal standard of care. Such an action seems to decrease the risk of an ethics complaints or lawsuits, and if the complaint is filed or the psychologist is sued, can help to bolster the psychologist’s contention that she or he acted reasonably at the time.
Practice Tip 6
Complete the loop by notifying you client of all interactions between yourself and all branches of the legal system.
If your client is not reachable, make a note in the chart. Psychologists still are obligated to protect their client’s privilege, whether or not the client can be found.
You can send correspondence to Andy Benjamin, J.D., Ph.D. or Tien Liang, Psy.D. or learn more about their backgrounds at: http://depts.washington.edu/petp or http://www.antiochsea.edu/about/OurFaculty_list.html
References
American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. Washington, DC.: Author.
Glosoff, H. L., Herlihy, S. B., Herlihy, B., & Spence, E. B. (1997). Privileged communication in the psychologist-client relationship. Professional Psychology: Research and Practice, 28, 573-581.
