Receiving a subpoena may be frightening initially, but Overcomers has an excellent legal team to help us navigate the nuances. Please follow these steps when/if you receive a subpoena.
Note: W2 employees/clinicians are covered under Overcomers malpractice insurance. If you are a 1099, you must contact your malpractice insurance about making a claim and representation.
Information taken from “The Legal Guide For Practicing Psychotherapy in Colorado.”
Legal service of a subpoena requires that a process server hand a subpoena to the person being served. To be effective, service of the subpoena must occur at least two business days prior to the date of the hearing or deposition identified in a subpoena requesting that the person served appear and testify. If a subpoena demands production of records, then the subpoena must be served with an authorization for release of any confidential or privileged records, signed by the privilege holder or holders. A subpoena may be sent by email, fax, or mail, accompanied by a Waiver of Service, but mental health professionals should not “waive” service by signing and returning the Waiver, unless they know that their client consents to testimony by the therapist whereby the therapist discloses treatment information to those present in court. A written Release of Information (ROI) signed by the client or clients involved, or by client representatives who may hold the privilege, is required in order to testify. It is appropriate for a therapist who is subpoenaed to testify regarding treatment information, with client consent, to be paid for the professional’s time to prepare for court, travel to court, and appear in court for testimony.
Therapists must remember that the service of the subpoena only compels attendance at a specific time and location for an appearance. A subpoena does not compel a therapist to testify regarding confidential treatment information or to produce privileged treatment records. Client consent is needed before a mental health professional can disclose treatment information or records.
A court order signed by a judge requiring testimony or the production of records should be honored.
Whenever a therapist receives a subpoena for testimony or a subpoena duces tecum requiring the production of treatment records, an informed consent process should begin. In this process, contact the client to determine if he or she consents to courtroom testimony and will give written authorization for disclosure of confidential information to the judge, attorneys, and all others present in court. Similarly, when a therapist receives a subpoena to produce for production of treatment records, the therapist needs to contact the client involved to determine if the client is willing to authorize the disclosure of a copy of all records subpoenaed - usually the entire client chart - at the time and place commanded by the subpoena.
If an authorization signed by the client for release of treatment information accompanies written correspondence from an attorney for healthcare professional who has been authorized to receive the information, the generally accepted standard of practice is to comply with state law in producing the records sought. However, the best practice is to inform the client of the information contained in the chart, and ensure that the client is willing to authorize the disclosure of the records knowing their contents. After being appraised of the information contained in the chart, the client has the choice of whether to revoke the previously signed written authorization for disclosure of records.
During this informed-consent process, a client may object to any release of treatment information when notified of the subpoena served by an opposing part’s attorney in litigation involving the client. If a client does not authorize the disclosure and production of treatment records or testimony by a therapist, then the client should instruct his or her attorney to oppose the subpoena and seek to have it quashed or file a motion for a protective order requesting protection of the confidential information contained in the mental health records. It should b3 the client’s attorney who engaged in legal procedures, at the client’s expense, to protect the client’s privacy and the confidentiality of treatment information. It is not the therapist’s obligation to retain counsel at the therapist's expense to file a motion for protective order. However, if the client has no attorney, therapists can contact their professional liability insurer to determine if their insurance policy provides coverage to retain an attorney for this purpose.
In situations when a therapist has received a subpoena to testify in court or to produce records, the professional cannot ignore the subpoena and must appear. If the client has not waived the therapist-client privilege and has not consented to testimony or disclosure of treatment information, the therapist should inform the court before testifying or turning over records that no client has authorized any waiver of the privilege or has consented to disclosure of treatment information.
In addition, a therapist may inform the judge that any information in the therapist’s possession would be personal, private, and harmful if disclosed. This can be done without acknowledging that a professional relationship has existed in the past with any person in the courtroom. If the judge then directs that the therapist take the witness stand or produce records that have been subpoenaed, the therapist should ask “Your Honor, are you ordering me to comply with the subpoena?” If the judge responds in the affirmative, then the therapist should comply with the court’s order, trusting that the judge is properly applying and enforcing the applicable law.