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This post was written by Seattle-based trial lawyer, A. Stephen Anderson, JD, MBA, who defends practitioners in disciplinary matters.
Subpoenas are a recurring vexation for mental health professionals. Many practitioners find them intrusive, intimidating, and confusing. Never to be taken lightly, subpoenas in high-conflict family law cases warrant special attention. A subpoena in these cases is a red flag and the practitioner should proceed cautiously. The danger lies in the nature of the conflict itself, the mental health and personalities of the parties to the dispute, and the fact that the parties are demonstrably litigious.
Frequently, warring couples try to induce their therapist, or their child’s therapist, to take a partisan position, thereby placing the therapist squarely in the line of fire from whichever parent doesn’t get his or her way in court. Often, one parent is better bonded with the therapist and the other parent resents it. Or the child therapist has a strong bond with the child, and one of the parents feels threatened by it.
In a disproportionately large number of high-conflict family law cases, one or both parents exhibit traits of a personality disorder, meaning they can be more manipulative and volatile, hence more likely to turn on the therapist if they don’t get their way.
The purpose here is to provide mental health and social service professionals with some guidance in handling a subpoena in a hotly contested family law dispute, although these guidelines generally apply in all cases involving mental health care information. Usually, subpoenas served on therapists seek records rather than live testimony but, except where noted, these guidelines apply in both situations.
Our goal is not to encourage the practitioner to deny access to those parties who need health care information and take proper steps to obtain it, but rather to ensure that if the information is disclosed, it is done properly. This best protects the interests of the client and the therapeutic relationship and protects the therapist from allegations of impropriety.
The Context
In our no-fault-divorce state, those high-conflict family law cases in which mental health records are sought usually involve children and thus span a myriad of emotional issues such as child custody, parenting, and visitation. Sometimes the marriage has already been dissolved and one of the parents has returned to court seeking to modify the parenting plan or other terms set in the original proceeding.
The subpoena usually means that one side wants to obtain the records to use against the other. Or perhaps the guardian ad litem or child custody evaluator seeks them for insight into the family dynamics. Although the therapist might have strong feelings about which parent should prevail in court, it is not the therapist’s fight and he or she should stay out of the fray. Preserving proper boundaries is the best way to do this.
Complaints to the Department of Health (DOH) from already unhappy parents are commonplace, and usually include allegations that the therapist crossed the line by taking sides. This can create a huge problem for the clinician. Even if the complaint does not result in a Statement of Charges, it can be anguishing for the therapist until it gets resolved. Usually, the DOH investigates the complaint and the practitioner is then under careful scrutiny. The practitioner will be asked to respond to the complaint, usually in writing, but sometimes in a personal interview, and produce the records for review. The Department will not limit its review to the issues raised in the complaint, but will also scrutinize the records, and occasionally the clinician’s administrative procedures and billing practices, for compliance with law and professional standards.
It is essential that the therapist handle a subpoena correctly to minimize the possibility of a complaint or an adverse outcome should one be made. There is a maze of pertinent law and court rules that must be considered.
First and foremost, do not ignore the subpoena. Sometimes the clinician must do what the subpoena commands and sometimes not. Regardless, a response of some kind is mandatory. The practitioner who simply ignores a subpoena can be found in contempt of court. The attorney who issued the subpoena can go to court, without notice to the health care provider, and obtain an Order to Show Cause why the therapist should not be held in contempt. The therapist would then be compelled to go to court and explain to the judge why he or she did not honor the subpoena, with possible costly consequences because usually, by this time, the attorney is also asking for monetary terms or other sanctions. If the situation has gone this far, the therapist has probably mishandled it. Now it’s a more expensive problem and one that can be harder to resolve.
If the subpoena is for records only and not the practitioner’s testimony, the therapist can delay, if not avoid providing them altogether, simply by serving written objections to disclosing the records on the attorney who served the subpoena. However, there is a limited time within which to do so, which means that the therapist must be prompt in communicating with the attorney. The objections to disclosing the records must be in writing and must clearly state the basis. Once written objections are served, disclosure cannot be had until the court considers the objections and rules on them. In effect, this stays (i.e., suspends) the subpoena until the issuing attorney makes a motion to the court, with notice to the provider, asking the court to compel production and the court considers the objections and makes a ruling. Upon receiving notice, the provider will want to make sure the court sees the provider’s written objections and is fully advised of the provider’s concerns. If a court considers the therapist’s objections and orders that the records be disclosed anyway, the therapist has discharged his or her duties and can safely provide them.
So, is there a legitimate basis for objecting to the disclosure? Providers can often determine the answer themselves just by going through the following checklist.
1. Is there a valid authorization from the client? If the client authorizes release, the records can be disclosed without further ado. Usually, the therapist won’t receive a subpoena in cases where the client has authorized release simply because it is not needed, but sometimes a subpoena is issued anyway. The therapist should ensure that the authorization is valid. If the clients were a couple and only one of the two signed the authorization, it is only effective as to records of individual sessions with the authorizing party. In cases where the client is a child under the age of 13, a parent with the right to make medical decisions can authorize the release of the child’s records. Any child who is 13 or older must authorize release.
2. Was adequate notice given that a subpoena would be served? Before a subpoena seeking health care information can even be served in Washington State, the party issuing the subpoena must give at least two weeks prior written notice to the practitioner and to the client or the client’s attorney. The purpose of the requirement for advance notice is to give the client or the client’s representative adequate time to seek a protective order from the court. The written notice must identify the health care provider from whom the information is sought, what health care information is sought, and the date by which a protective order must be requested (by motion to the court) before the practitioner must comply. Only after that date may the subpoena be served. A therapist may not provide records or testify at deposition, even if served with a subpoena unless the issuing attorney has complied fully with this notice provision.
Obtaining a protective order can be an expensive process. Unless both parties stipulate to the language of the order, a motion to the court must be made before the expiration of the 14-day notice period. If the point in seeking the protective order is to quash the subpoena or limit what health care information can be disclosed or who may receive it, a stipulation is unlikely.
The health care provider is not deemed to be a “representative” of the client and lacks standing to seek a protective order unless he or she has been appointed by the court. Thus, the client must seek the protective order and bear the expense.
The therapist might logically assume that the client’s attorney would undertake the motion on the client’s behalf since both the therapist and the client’s attorney have the client’s interest in mind. But the client’s attorney may be unwilling to take this on for various reasons. The attorney might not want to appear obstreperous to opposing counsel or the court. There is a provision in Washington domestic relations statutes that provides: “Neither parent may veto the access [to the child’s education and health care records] requested by the other parent,” and the attorney might want to avoid being accused of violating it. The client’s attorney might have other strategic or economic issues that impose. Or perhaps the client simply lacks the resources to pay for the additional work.
3. Was the subpoena properly served? Once the notice period has elapsed, the subpoena still must be served personally on the person named (usually the health care provider) or left at the named person’s abode with a resident of suitable age and discretion (taken to mean at least 14 years of age). If the subpoena names a clinic or other organization, it must be personally served on a person authorized to accept service for that organization. A subpoena naming a specific health care provider that is served on the provider’s receptionist, dropped through the mail slot, or served by fax or mail is not properly served unless the provider agreed to accept service this way. Sometimes the practitioner will agree to accept other than personal service (e.g., by fax) to avoid possible disruption while in session.
Yet another rule provides that a subpoena that calls only for the production of records, that is to say, without a personal appearance, must have been served on the other attorneys or parties five days before it is served on the provider. As a practical matter, five days may have been subsumed within the two-week notice period described above.
A subpoena cannot compel production or attendance outside the county in which the recipient resides, is employed, or conducts business, without an order of the court.
4. Has privilege been waived? Communication between a client and certain mental health care providers is privileged by law. This means that the provider may not disclose any information acquired from the client that was necessary to provide professional services, even if there was adequate notice of a subpoena and it was properly served. Clients of psychiatrists and psychologists have long enjoyed this privilege. In 2009, privilege was extended to the clients of licensed counselors, that is to say, LMHCs, LMFTs, LICSWs, and licensed associates.
The privilege belongs to the client, not the practitioner, and only the client or the client’s lawful representative can waive it. The privilege extends to the parents of a child client under the age of 13. Of course, a valid authorization to release records would constitute a waiver of the privilege as to those records. And the court always has the power to consider the privilege and order the practitioner to provide the information in whole or in part.
5. Has the issuing attorney arranged to compensate the provider? The party issuing the subpoena must “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." "Reasonable steps" are understood to include providing compensation for the practitioner’s lost earnings, or at least statutory witness fees, the statutory costs of providing records, and can also include reasonable attorney fees that the therapist incurs in protecting the health care information from improper disclosure.
Under Washington law, the provider is allowed to charge up to $1.17 per page for the first thirty pages; 88 cents per page for all other pages; a clerical fee of $26.00; and, if the provider personally reviews the records to edit out confidential information required by law, the provider can charge the usual fee for a basic office visit. HIPAA rules are different. If the provider is operating as a “covered entity,” the provider may charge a reasonable cost-based fee for providing a copy to the individual in the form and format requested or agreed to and limit the fees to include only the actual cost of certain labor, supplies, postage, and preparation of a summary if requested. HIPPA does not permit per-page fees.
6. What is in the records? Is the therapist reluctant to release these particular records regardless of these other factors? For example, one or more of the children might have provided information they do not want revealed to their parents. Perhaps the child even specifically asked for the therapist’s assurance of confidentiality before providing the information. Or perhaps disclosure could endanger the client or someone else. Maybe the records contain particularly traumatic, salacious, or embarrassing information. In situations like these, the therapist could ask the court to review the records in private before deciding whether to order their production. Ordinarily, the mechanism for accomplishing this would be a motion for a protective order (which the provider has standing to seek only if he or she was appointed by the court), but sometimes an in-camera review can be had by stipulation.
After sorting through this list of preliminary questions, the therapist or the therapist’s attorney should talk with the parties' attorneys and the client. Talk with the client’s attorney and the client or the child client's custodial parent. Does either of them have any objection to producing the records? If the therapist has concerns that the client’s attorney or parent may not be aware of, perhaps some paramount reason to keep the records private, the therapist should say so. Perhaps the therapist can motivate the client’s attorney to seek a protective order denying or limiting access or, in the alternative, request an in-camera review by the court. The therapist should document these conversations in the records and memorialize them with an email, fax, or letter to the other party to the conversation.
Talk to the attorney who issued the subpoena and ask what they want and why they want it. Perhaps the records reflect poorly on the attorney’s client, who would be better off if they were not disclosed. If that is so, tell the attorney. If there are constraints on the therapist’s ability to respond to the subpoena, e.g., inadequate notice, privilege, lack of a court order, or anything else, tell the attorney and ask them to withdraw the subpoena or agree to suspend it until the objection is resolved. If a valid legal or strategic impediment to disclosure is pointed out, the lawyer will likely withdraw or suspend the subpoena until the issue is resolved.
Regardless, the therapist or the therapist’s attorney must follow up by serving the issuing attorney or party with written objections as described above and by memorializing the conversation in the records and in an email, fax, or letter so as to avoid a later “he-said, she-said” contest.
Here’s an example of how a dispute over a subpoena can spiral out of control if not properly handled. A therapist had a conversation with an attorney who had issued a subpoena, explained why the records should not be produced and thought that the attorney relented and “withdrew” the subpoena. But the attorney had a different understanding of the conversation and, when the records still had not been produced several weeks later, went to court, obtained an Order commanding the therapist to appear in court and Show Cause why she should not be held in contempt and be required to pay costs, and served the order on the therapist. The therapist had not confirmed the original conversation in writing to the attorney (a simple email would have sufficed), documented the exchange in the records, or served written objections to disclosing the records. The therapist, now frantic, called her attorney. Fortunately, her attorney was able to craft a resolution that kept the records private and without a confrontation in court, but at some expense, which the therapist had to bear.
In cases where the subpoena seeks the therapist’s deposition in addition to records, most of these provisions still apply. The party issuing the subpoena must provide a minimum of two weeks' notice before serving it, must arrange for compensation (usually more than the statutory charge for merely providing records) and, arguably, must obtain a court order compelling the provider to testify. The therapist should contact the issuing party, explain why the therapist is constrained from testifying and ask them to withdraw the subpoena. When the therapist has been subpoenaed to appear in court with little notice, then as a practical matter the therapist may have to appear and explain why he or she cannot provide records or testify until the issues are resolved and let the court rule.
The therapist should bear in mind that attorneys operate in an adversarial system. Usually, this methodology is antithetical to the therapist’s familiar mode of conflict resolution. The therapist’s training and experience in resolving conflict calls for a more therapeutic, collaborative, and harmonious approach, which can place the therapist at a disadvantage in an adversarial arena. An experienced attorney, knowledgeable about these issues, can offset this disadvantage.
The best practice would be for the mental health care practitioner to immediately seek counsel from an attorney well versed in these issues whenever he or she receives a subpoena in high-conflict family law litigation. An experienced attorney who is knowledgeable about these issues, the therapeutic process, and the disciplinary process can best help the therapist negotiate this maze so as to comply with the law and in a way that minimizes conflict with the client and other parties to the litigation, protects the therapeutic relationship, and minimizes the potential for complaints against the therapist’s license.
Surprisingly, many family lawyers are unaware of Washington’s statutory requirement for adequate notice before issuing a subpoena, and some are unaware that privilege has been extended to clients of licensed counselors.
Even if the client waives the privilege, there is still the matter of the therapist’s compensation to resolve.
Mr. Anderson is a Seattle attorney specializing in health care law and litigation. He represents healthcare providers in disciplinary matters and consults with providers on various legal issues that arise in their practice.
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