When a Psychologist Receives a Subpoena for Medical Records
Gradudate school training does not sufficiently guide you about what to do.
Posted Sep 12, 2018
When you work as a psychologist, you may have the experience of receiving a subpoena for the medical records/mental health records of a client. If you work for an institution, odds are that the institution will have staff who are specifically designated to respond to this type of request. If you are in private practice, the onus is on you to make sure that you respond in a way that both honors the law and sensitively manages the clinical issues involved with your client.
Most importantly, when you receive a subpoena, you should make sure that you are well acquainted with the HIPAA Privacy Rule. You can find information about the rule here.
When you receive a subpoena for records, contact your client and let the client know that you have received a subpoena for records. First, minding your responsibility to focus on your client's thoughts and feelings, give them a chance to talk about their reaction to this situation. Share with your client that there are regulations and laws that apply in this situation, and let your client know that you will proceed in a way that is as sensitive to them as possible, while simultaneously following the various regulations and laws by which you are professionally bound.
When you speak to your client, ask if he or she wants the records to be released. If your client wants the records to be released, he or she should sign an authorization/release form for the various parties involved. If your client has an attorney and wants you to speak with the attorney, you need a release for that individual, too. If your client does not want the records released, you should consider discussing this with an attorney. (More on that in a moment.)
The American Psychological Association's (APA) Committee on Legal Issues encourages psychologists who receive a subpoena for records to consult with an attorney for guidance. If you work for an institution that is the holder of the medical/mental health records, you should speak to a supervisor who should then pass the issue on to the legal counsel employed by the agency. If you work in private practice, you should have malpractice insurance and that insurance may cover attorney representation for management of subpoena-related issues. In private practice, call your malpractice insurer as soon as possible to report the issue and find out whether you have coverage for attorney representation. Though it may seem strange to consult an attorney, the reason for doing so is that subpoena-related issues are legal, court-related issues, and attorneys who specialize in mental health cases are more familiar with the complex regulations and laws that apply. You can read more about the APA's recommendations here.
If your client does not want records released, you should consider discussing this issue with the attorney you consult as there are potential clinical and legal issues involved.
Note that, if you are in private practice, you cannot charge your client for the time spent reviewing their records, talking with your client about it (unless it is done within a paid session), or coordinating with your client's attorney (if they have one). If you testify in court, you may be able to charge for that time.
With sufficient guidance and care, you can sensitively and effectively manage the various clinical and legal issues involved.