Mental Health Professionals: What to do if you get a subpoena?Apr 04, 2023
If you want to see a related video, find that here:
Therapists are often overachievers. We want to know there’s a right way and do it the right way. We’re…a bit of an anxious bunch.
At the same time, we’re a group of people who have been trained to embrace our feelings. Not to minimize, things, or ignore them.
This is a bad combination when you get a subpoena! Anxiety ratchets up, and the desire to contain, organize, collate, and lock down kicks up. But there’s no one to tell you what to do!
Everyone’s rote advice is: “call your malpractice insurance.” Yeah, I have to say that too.
But…in my experience that is hit or miss in terms of preparing you for this.
Also, as long as we're on the topic of disclaimers, this isn't legal advice or formal consultation. I'm offering tips and observations based on my own experiences in efforts to be helpful and to give you a starting place for your own research and considerations.
Fact Witness vs. Expert Witness
Now here’s the next thing I’ll say, and I think this is counter to what a lot of others might. Don’t avoid. I don’t just mean be responsive, but try to embrace the situation proactively. (But I do have to start with the nonresponding before we get to the proactivity.)
YOU MUST RESPOND TO A SUBPOENA. I’m sorry to yell, but do not ignore it. For no other reason than it’s bad for your client. But also because it’s bad for you, bad for the Court, and bad for the reputation of our field. You. Must. Respond.
Ok, so with the basics out of the way what I mean by “don’t avoid” is that I recommend a mindset where your goal is NOT to figure out how not to do it. How's that for a double-negative? But I mean, your goal is to figure out how to do it. If you don't, that necessarily orients you into a position where you’re being pushed into something scary. Instead, I recommend that you lean into it.
I know that’s easier said than done for someone who makes a living in Courtrooms. But believe it or not I remember the fear and anticipation and confusion of entering Court for the first time. Then and now, here is what I’ve found: most of the time, they don’t really know what’s going on either.
They’re going to ask you legal questions. You’re going to have to try and figure out how to interpret them into psychological answers. Your only obligations are to tell the truth, but sometimes the questions are so far off base that this will be hard. So all you can do is stay committed to telling your own truth, answering questions as clearly but succinctly as possible, and trying to remember that at the end of the day you know more than they do about the subject you’re talking about.
If you’re coming in to talk about your treatment case, then you’re a fact witness, not an expert witness. While they may give you more leeway than the average fact witness, you’re going to be containing your testimony pretty narrowly to what are more or less sensory observations. What you heard, saw, thought, wrote, diagnosed.
Court Order vs. Subpoena
But coming back to your original receiving of the subpoena, before you ever enter the Courtroom, let’s just talk for a second about what happens when you open that thing up, take a deep cleansing breath, and what do you see?
The first distinction you need to make is who is doing the asking?
If it’s coming from a judge then it’s going to be a Court Order, not a subpoena. That is a whole other kettle of fish. For a Court order, you do what they Order. Or, you go through a very formalized process in responding if you think you can’t. But for a subpoena, you have a little more leeway in terms of your response, depending on who is doing the asking. For a subpoena, those are authored by lawyers. It is usually acceptable at this point to contact your client and ask for more information or any contextual information you might need to know in responding.
The second distinction you need to make is what are they asking you for? Records? An appearance? To show up in person with records in hand? Do they want you for a deposition? A hearing?
Another thing we need to talk about, and this happens way before the fateful inquiry about a subpoena, is inoculation. Your intake paperwork and your informed consent practices are critically important in terms of discussing some of these possibilities with people. Your progress note habits are even more critical in terms of inoculating you from fallout concerns for a subpoena. The problem is, most people don’t realize they’ve been doing something questionable in their notes util after the subpoena is in hand. Some people learn that their notes aren’t protected from most legal proceedings as a result of that subpoena.
You can’t give informed consent about something you didn’t know. So your policies and procedures need to state clearly what your Court policy is, your fees, how far ahead of an appearance you need notice, how far ahead you need to receive payment (and that payment can’t come through insurance), any caps or limits on preparation, consultation or research time, and what limits if any there are around what you will or won’t do (letters, in person appearances, etc.). It’s important also that you are well versed in record keeping and release guidelines and understand that neither you or your client get hardly any discretion about what is or isn’t released. It’s ok to ask your client for a session to discuss what it would mean for you to release their entire record and/or to give the Court access to asking their therapist questions about them, and the kinds of information that could come out there.
As far as policies, while some people advise that you can have a policy that says you won’t attend Court proceedings, I’ve never seen that be particularly realistic. Even if you end up avoiding Court because of some clause or exception you made a client fill out, in many cases that’s going to come at the direct legal expense of your client. Most of the things they might put at issue psychologically waive their privilege to mental health information. If they don’t have you to appear to discuss their condition or symptom, they may have no case. And even if you have this policy, the Court can Order you to appear, and then you might get to do it for free.
So I recommend against having a policy that you won’t appear.
At the same time, you’ll want to offer limitations around your own expertise or work as well. You won’t offer forensic or expert opinions. You don’t weigh in on custody or visitation, you don’t offer anything about competency or parenting ability or if an injury occurred or if the client is disabled or if they meet special education guidelines. Remember that you are a fact witness. The information you are providing is very tightly limited to the scope of your role.
And I want to reiterate again, I really caution against thinking about any of your policies or fees as a deterrent or a way to keep you out of Court. Whatever your personal feelings are about Court, I don’t think that’s an appropriate use of the informed consent process. I see this like hospitalizing someone or reporting child abuse or completing a Tarasoff warning; this is an uncomfortable but necessary occasional aspect of our role and responsibilities. You can’t policy yourself out of those obligations, and I think it helps to think about this similarly. If someone approached you and asked that you consult with their psychiatrist I doubt you’d respond “I don’t do that.” You would be more likely to say “here’s what I charge for that.”
Now this does bring up one other thing which is a question of your own competency. If someone asked you for a letter about hormones it might be an appropriate response to say you don’t specialize in that work and here’s a referral. But the problem here is that Court isn’t asking you for specialized Court work. They’re asking you for information about what you’re actually doing already. So I don’t think that gets you off the hook. And that’s why I see this more like those other unpleasant but necessary aspects of our role. And with those, what you can do is inoculate yourself with your informed consent and record keeping practices, then consult and prepare and organize on the occasion they become necessary. But not avoid. Not deflect. Not deter.
Responding to a Subpoena
Now assuming you’ve gotten everything squared with your client and you’re ready to respond to the subpoena, you have to consider your privacy obligations. Most times with a subpoena that’s going to be resolved with a release of information with the client directly. On occasions it will be done by a Court Order that says you need to release records, talk to someone, etc. The short version is: I recommend that you don’t offer a summary. Sure, HIPAA allows you to do that. It's not technically wrong to ask me, just know that you've very likely to hear "no" and, if all that took too much time, you might end up with other problems. Use your judgement, but typically I'd say that if you get a Court Order, please consider Just releasing what you’re ordered to release. But with a subpoena, no one has probably authorized you to release private information yet. You need an ROI.
If the request for your appearance is coming from your client’s attorney, chances are they may have already signed an ROI. Assuming it’s a current client, you may still want to touch base with them about the release to be sure they understand the scope and clinical implications of releasing information. If you don’t have a release, then you cannot send information or even confirm the treating relationship without an ROI, and the attorney and the Court will need to accept that (until or unless they Order otherwise). You would treat this as any provider where if someone called to ask about a client, you can give the line that you can't confirm or deny and that generally you'd need a release in place to either confirm or deny, let alone provide records if the person is a client. But still, that's about privacy and the law, not to serve as another avenue to avoid it – chances are high the Court will just Order it instead.
Method of Communication
My personal favorite is email, for two reasons. One, I can do it between client sessions, or outside of business hours for my fellow night owls. But even more important is that it leaves a record of who said what, when. Now, a lot of attorneys will not necessarily want to discuss things over email, for exactly these same reasons. So I tend to respond in whatever way they requested it, but it’s always email if left to my own devices.
Who do you release to?
My preference is to release directly to the attorney. They’re the one bound by ethical obligations and so I can be more confident that the set I send them is the one that makes it to discovery. If you have hang ups about releasing the records, watch this.
Whose privilege is it?
Mainly the client, with the therapist in charge of protecting or invoking it. It’s similar to confidentiality in that it’s the client who has the right to keeping their private information private, and the therapist who safeguards that and does not release information without authorization. Privilege is like that, but narrower. It’s the privilege of a client to not have a therapist disclose information about them in a legal setting. So when you’re asserting privilege, it’s on behalf of your client, not you. And that is why, if a judge compels you, or orders you to disclose it anyway, then that is in most cases enough to remove any licensing concerns on the therapists part. And ultimately it’s important to remember that the privilege isn’t yours, because they’re not your records. They belong to the client, and you protect them until they tell you otherwise.
Can you charge for prep time?
Yes. TAs far as how much and how to justify, I think this comes back to this: is what you’re doing primarily for you, or for them/the case? If you’re reviewing your records and rereading your evaluation or creating a summary or prepping slides or other visuals so they can understand something, those are pretty clear where you can charge your hourly rate. Other things where the primary purpose is to give you professional guidance or relieve your own anxiety – consulting with malpractice or going to sit and watch a different hearing so you know what to expect, or coming to someone like me to calm you down and tell you what to expect, those things are more about you than the case itself. If you'd do that task if any client had been subpoenaed, then that time, I think, should come out of your own pocket.
Some things will be less clear. Consultation, for example. I often consult about cases still that are tricky while I’m prepping for testimony. In my situation, that is still about the case because we’re not talking about me, but about the individual case and the variables. But for people who have less experience in Court, often times I’m talking to them about their case but I’m also spending a lot of time talking to the clinician about them. How court works, how to slow down, what to do with this kind of question or that, more generally. I think this is a judgement call – it is in service of you being the best and most helpful possible witness for the Court, so I think it is ok to consider partially passing this on to an extent, when this isn’t your wheelhouse and you don’t regularly do it. At least, I think I'd feel ok justifying that on the stand. But be conservative, try to imagine what most clinicians would need to spend on this, and don’t go beyond it in your charging.
Who pays you?
If you’re an expert witness, then this is pretty clear – you’re being paid by the attorney or the Court, not the client. The Court or the attorney is your client, and even if, practically speaking, they’re collecting money from their client to pay you with it, keeping the lines clear here means being paid by the attorney.
If you’re a fact witness, it’s going to be less clear. Typically the client will pay the fee, which is another reason not to engage in price gauging. You can't bill insurance for Court appearances so make sure that's nice and clear, if you're being paid by the client. And I recommend getting payment upfront, but that's a different topic for a different day!
If you have more questions about setting fees, you can find more information here.
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