Many a psychologist has been confronted by the ever-present confusion that seems to take place when patient files are requested as part of a legal proceeding. This confusion frequently leads to a variety of questions that revolve around issues of whether these requests mandate disclosure, what records must be disclosed and whether the psychologist is now going to be involved in the legal proceeding.
The good news here is that while these requests can initially appear quite daunting, they are really not that difficult to deal with. What all psychologists need to do is to not allow the natural fear that many have about being involved in a legal proceeding to prevent them from making the right choices on behalf of their clients, choices that must be consistent with state and federal law.
What follows is a simple outline of how to deal with legal requests for mental health records:
Outside of patient authorizations for the release of their records, legal requests for information generally come in two forms: court orders and subpoenas. These are different entities and, consequently, the responses to them are different.
The court order is really the easiest with which to deal. If you received a court order for the release of patient information, it compels disclosure of the records. What this means is that a judge has determined that your client’s records must be disclosed as part of a legal proceeding and that this disclosure is consistent with the law.
While you might disagree with the order and believe that this decision is not correct, that decision is really not in your control. It also is important to pay close attention to the scope of the order since the order may be limited to certain materials or it may mandate disclosure of all of the records in your possession.
In addition, if you are not going to provide some materials specified in the order, like testing materials that are not supposed to be distributed to those not qualified to have them, you must note the absence of these records in your response to the order. However, if the judge subsequently orders you to turn those materials over, you should comply.
Finally, if you believe that the order is a violation of law, you can notify the court of that opinion, but that does not replace the requirement to comply. In a simple sense, if you receive a court order for records you must comply or risk sanctions by the court.
The second way information generally gets into a legal proceeding is through the subpoena process. There are various types of subpoenas including, but not limited to, subpoenas for personal appearance at a deposition or in court or for the patient’s records. Generally, a deposition subpoena will include a provision for production of the patient’s chart.
For purposes of a deposition subpoena, it is becoming more frequent for a psychologist to have legal representation at depositions both to protect the psychologist and to help in the determination of what is appropriate for disclosure. If you receive a subpoena to appear at a deposition, it is best to contact your malpractice insurance carrier who may provide you with counsel for this limited purpose at no cost to you.
Whatever the type of subpoena you receive, it is important for you to remember that a subpoena does not usually compel disclosure of privileged information; it establishes the court’s authority over your records. While in most states, a subpoena without an authorization from the client does not compel compliance, it compels a response.
Therefore, you must contact the lawyer seeking the information and explain that without an authorization from a client, the records cannot be released. While some lawyers may not like hearing this, and may even resort to tactics to intimate you into releasing these materials, the law is almost always on your side here. You must have an authorization to release patient records. However, you should be mindful that in a lawsuit where your patient has put his or her mental health at issue, the lawyer seeking these records is usually entitled to them.
What if you get a subpoena with an authorization? It is advisable to discuss your records with the client, prior to release, if at all possible? Clients generally do not know what psychologists keep in their records and after a review of what is about to be disclosed, they may make a decision to rescind the authorization. At that point in time they need to work with their attorneys to decide what is in their best interest legally but, without an authorization, the information cannot be provided.
There are times when a psychologist will be subpoenaed to appear with their records to testify in court. If this occurs without an authorization, you will likely still have to appear. It is a good idea when you receive this type of subpoena to contact the lawyer making the request to let him or her know that you are going to assert privilege on the stand or in your testimony on behalf of your client.
The attorney then will be forced to secure either an authorization or a court order to compel disclosure. If this occurs during court testimony, when you are on the stand you should assert privilege on your client’s behalf and the judge will make a ruling at that time. Needless to say, you should comply with that ruling since it is considered to be a court order.
Finally, if you are confronted with a legal request for information, and you do not know what to do, you should do nothing and secure legal advice. Legal emergencies are very rare and there is almost always time to get this type of consultation.
Remember, grave consequences can occur when, under pressure, a psychologist independently makes the wrong choice about providing privileged information in a legal proceeding.
January 5, 2021
July 28, 2020
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