Sponsored by CPH & Associates
by Denis K. Lane, Jr., Attorney at Law
The protocols for responding to a Subpoena for testimony or a Subpoena for production of records are important to avoid a breach of client confidentiality – or HIPAA violation – and other consequences. This Blog is intended to provide guidance regarding the steps that an MFT should follow after being served with a Subpoena, as well as procedures that an MFT can undertake when informed that they will be served with a Subpoena. First, however, lets discuss some basic legal information regarding Subpoenas.
A Subpoena does not require a therapist to testify in court or at a deposition, nor does it require the production of confidential, privileged treatment records. A Subpoena, that has been properly served, directs a therapist to appear at a specific time and place, either to give testimony or to produce records in the possession of an MFT. A Subpoena does not compel a therapist to disclose confidential treatment information including records. Client consent must be obtained, authorizing disclosure of treatment information, before a therapist can testify or produce treatment records. Just as AAMFT Ethical Principle 2.1 requires that treatment information be kept confidential, AAMFT Ethical Principle 2.2 requires that a client consent to the disclosure of confidential treatment information.
Steps to take in Responding to a Subpoena
- Contact an Attorney. The best advice for an MFT who is served with a Subpoena or is informed that a Subpoena will be issued to them is to hire an attorney. MFTs who are insured through the group professional liability insurance program for AAMFT members through CPH & Associates, should contact CPH to submit a claim, in order to see if insurance coverage exists to pay an attorney under the professional liability policy issued to the therapist. The legal issues which can arise in connection with the subpoena include the following: Was the Subpoena properly served? Has proper consent, waiving the privilege, been received from the privilege holder(s)? Is the therapist entitled to an expert fee for court testimony? Whether state law and HIPAA standards require the production of treatment records identified in a subpoena? When a client objects to testimony by an MFT for production of treatment records, an attorney can make the appropriate legal arguments in court through a Motion to Quash the Subpoena or by the filing of a Motion for Protective Order.
- Contact the Client(s) or Client Representative. Has the counseling client, or client entity if it is a couple or family, provided informed consent in writing, authorizing disclosure of confidential information to the judge, the attorneys, and all others who may be present for testimony? An MFT needs to determine if the client is willing to authorize the disclosure of treatment records subpoenaed – usually the entire client chart – at the time and place indicated by the Subpoena. If the client objects to the disclosure of treatment information, then the therapist or their attorney needs to raise this objection to the attorney or party who issued a subpoena, stating the reasons why objections are being made to the disclosure of treatment information. For example, if an MFT provided couples counseling, the therapist cannot disclose information or testify without the consent of both members of the client couple in compliance with AAMFT Ethical Principle 2.2. If parents have been given “joint decision-making authority” by the court, requiring both parents to consent to mental health treatment for their children, then the parents jointly hold the privilege for a child, so the parents must jointly consent to the disclosure of treatment information, just as they were required to jointly consent to treatment. If a client does not authorize the disclosure of treatment information or production of records, then the client should instruct his or her attorney to oppose the Subpoena and file a Motion raising appropriate objections with the court. It should be the client’s attorney who engages in legal procedures, at the client’s expense, to protect the client’s privacy and the confidentiality of the client’s treatment information. However, if the client has no attorney or if the client’s attorney refuses to file a Motion raising the appropriate objections, then therapists should use their own attorney to handle the legal issues.
- Expert Fee or Compensation. When an MFT is required to testify concerning the assessment of a client, the treatment goals formulated, the treatment plan, and progress made in treatment, all of the therapist’s opinions regarding presenting problems, diagnoses, and the treatment plan, , constitute expert opinions, based upon the therapist’s professional education, training, experience, and familiarity with the client. The fact that an MFT may be testifying as an expert entitles the therapist to be compensated appropriately for their time in traveling roundtrip to court, waiting to be called as a witness, and testifying on the witness stand. Either the therapist or an attorney should provide notice to the individual, who issued the Subpoena, regarding the hourly expert fee that is charged for testimony in court. If a witness is providing factual testimony, then only a witness fee can be charged; e.g., “Did you see the husband strike his partner? “ “Did your client admit that physical punishment administered to a child left bruises and welts?”
- Appearance in Court or at a Deposition. A professional who has received a Subpoena cannot ignore it and must appear at the time and place indicated, unless the therapist’s attorney or the court direct otherwise. If the client has not waived the therapist-client privilege or consented to disclosure of treatment information, the therapist should inform the court before testifying or turning over records that no client has waived the privilege or consented to disclosure of treatment information. In addition, an MFT or retained counsel may inform the judge that any information in the therapist’s possession would be personal, private, and harmful if disclosed. This argument can be made without acknowledging that a professional relationship has existed in the past with any person in the courtroom. When ordered by the court to testify or to produce records, the therapist should comply with the court’s order, trusting that the judge is properly applying the law.
- Requests to Waive Formal Service of a Subpoena. A therapist may receive a Subpoena that is sent by email or through the U.S. mail, accompanied by a card or a Waiver of Service, which requests that the individual “waive service”, by signing the card or Waiver, and returning it to the individual who submitted the Subpoena. Questions frequently occur regarding whether or not an MFT should waive service in such a situation, or not? Experience has shown that it may be best not to waive formal service of a subpoena, unless the therapist is assured: (1) that the client(s) or client representative consents to the disclosure of treatment information sought through the issuance of a Subpoena; (2) that the therapist will be provided with an appropriate fee for testifying; and (3) the therapist has been informed regarding the subject of any court testimony, so that the professional will be prepared for the appearance in court. Why agree to waive service of a Subpoena if the client objects to the disclosure of treatment information?
- Compliance with AAMFT Ethical Standard 7.7. Before testifying in court, an MFT should review the AAMFT Code of Ethics (2015). In doing so, make sure that you comply with AAMFT Ethical Standard 7.7, which applies to testimony in divorce or custody litigation, and instructs that a clinician who has provided services to a family member may only testify concerning the MFT’s clinical perspective regarding the treatment, and may not express any opinion regarding custody or arrangements for parenting time or visitation.
In conclusion, therapists should protect themselves and the confidentiality of client treatment information in their possession by following these steps to ensure that client consent is obtained before disclosing any treatment information sought through a Subpoena. MFTs should make certain that they comply with the ethical Principles established by AAMFT regarding confidentiality of treatment information and the waiver of confidentiality by the client or by the client entity. A best practice for MFTs would be to identify an attorney who can represent the MFT in responding to a Subpoena, if needed, at a moment’s notice. This will help to ensure that MFTs comply with not only the ethical principles and HIPAA standards applicable to them, but also with court rules and state laws that are applicable.
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