The Dreaded Subpoena
Sooner or later in their careers, most psychotherapists and counselors are likely to receive a subpoena requesting client records. Therapists often react with dread, or respond with a fight or flight response when served with a subpoena, which can result in either ignoring the subpoena or immediately providing the requested records. Either response may be illegal, unethical and counter-clinical. Responding to subpoenas can be complicated and complex, since legal requirements sometimes conflict with ethical guidelines and copyrights laws.
Receiving a legal-looking document commanding you to turn your records over to an attorney can be very intimidating and stressful. The probability is high in our litigious society that many psychologists will receive many such requests. This document will help you navigate the legal and ethical complexities and guide you in making informed decisions in response to subpoena requests. The law does vary greatly from jurisdiction to jurisdiction, so it is advisable to also consult with an attorney in your own jurisdiction. Further, much of the law is located in case law, published appellate decisions, making it more difficult to understand your legal requirements.
Therapists often overlook the simple possibility that clients may approve or, at the least, do not mind that their therapist send copies of their records to attorneys or courts. However, clients may not always be aware of the potential negative consequences of disclosing their records to the legal system. Therapists may wish to consider that simply having the client fill out an authorization to disclose form, and disclosing all records, may not be ethical or in the client's best interest. It is recommended that therapists perform an informed consent prior to disclosing such records (Borkosky & Smith, 2015).
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What Is A Subpoena?
A Subpoena is a legal document or order requiring an individual (psychotherapist) to appear, and usually to testify, in court on a certain date and/or to produce documents.
Subpoena duces tecum is derived from the Latin meaning "bring it with you." It is an order requiring a witness (psychotherapist) to bring specific documents, reports, tapes or any other specified records that are in the possession or under the control of the witness to a certain place at a certain time. Requested records may include progress notes, financial records, appointment dates, HIPAA psychotherapy notes, and/or psychological test data or test materials.
A subpoena is usually served by a neutral person not a party to the litigation. Usually, legal service is done by a professional, sheriff or someone else, who delivers a copy in person or leaves it at the intended recipient's residence or place of business. Attempting to avoid being served a subpoena is most likely unrealistic.
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Who May Initiate Subpoenas?
It is very important to understand the differences between the various types of subpoenas, especially between a subpoena initiated by an attorney vs. a court-ordered subpoena. In some jurisdictions, as in California and many other states, subpoenas can be issued routinely by attorneys. In other words, not all subpoenas are court-ordered. While not all subpoenas are court orders, nevertheless therapists should not ignore any subpoena, regardless of who initiated it. Generally, therapists should respond to the subpoena, in writing, by the due date on the subpoena – even if it is to assert privilege or to inform the Court that the therapist is unable to comply with the subpoena.
In contrast to subpoenas generated by attorneys, a subpoena generated by a court is considered a court order and is generally issued only after a hearing before a judge. Such a court order is likely to compel a disclosure, unless the order is appealed to a higher court or the court/judge changes their opinion at the request of the therapist, the client, the attorney, or other parties. If privilege is asserted and/or disclosure of the records is disputed, the Court may hold a hearing where the litigants can make their arguments about whether the records must be disclosed. In the end, the court must decide what information or records are protected and what are not.
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Clients' Authorizations To Release Information
When a client wants or is willing to authorize a therapist to release the information, the client must complete and sign the Authorization to Release Information. Sample of Clinical Forms, including Authorization to Release Information
If a subpoena arrives from a client's attorney without a signed client's release form, check with your client (not with the attorney) before releasing the documents. Before releasing the records, obtain a written authorization. Some experts take the position that, technically, a request from a client's attorney is legally the same as a request from the client himself or herself. However, it is the opinion of the author that the therapist must personally confirm with the client and obtain a written authorization. The basis for this assertion is that licensing laws in all states require written authorization before disclosing confidential records (absent a court order). Although privilege sometimes does not apply, and privilege is sometimes waived, a therapist is not authorized to make such determinations, and should always obtain written authorization or a court order.
When a signed authorization accompanies a subpoena, but the therapist believes that the material may be clinically or legally damaging, the therapist should discuss these issues with the client before releasing the records and perform an informed consent. If the client still insists on such a release, the therapist should note their concerns in the records and document the discussion with the client. A therapist should rarely, if ever, produce a summary of the records in lieu of the records themselves (Borkosky & Smith, 2015).
When a signed authorization to release form is included with the subpoena, the therapist should comply with the specific requirements of the subpoena, which means releasing only the relevant and the minimum necessary information. Doing so is consistent with HIPAA’s minimum necessary requirement.
When the records include information about other people in the client's life who were discussed in therapy or who attended one or two sessions, additional attention is required during the informed consent process. If the sessions included more than one person (e.g., family or group therapy), the therapist should consult with an attorney before proceeding. The Court may direct the therapist to redact the records, or may issue a protective order, or may view the records in camera, or provide some other protection for the third parties.
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Out Of State Subpoena
If the subpoena was issued by an attorney or judge in a different state, it may not be valid and is likely to be insufficient to compel a testimony. It doesn't matter where the trial is being held. What matters are the legal requirements for issuing a subpoena in the state in which the witness resides.
Responding to a Subpoena
It is critical that therapists understand that they must always provide some response to a subpoena. Possible responses are numerous, including a request for additional time and asserting privilege on behalf of the client. The response must be in writing, and must be sent to all parties in the case, as well as the Court. The response must be received by the requestor on or before the date indicated on the subpoena.
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Motion To Quash A Subpoena
When a client or his/her attorney objects to the release of records, the therapist or the client's attorney may file a motion to quash the subpoena on the basis of protection of client-therapist privilege and the client's privacy, and the duty to maintain confidentiality, and, if the client is a crime victim, relevant crime victims' rights laws (See below section on Victims' Rights). It is ultimately the litigant-client (and their attorney, if any) who is responsible for filing motions before a court (although it is possible that a nonparty therapist could file such a motion – e.g., if the client has no attorney and cannot be located). Once privilege is asserted, if there continues to be a dispute about the matter, a hearing will be held to decide whether privilege does not apply, applies, or is waived. The court will ultimately rule on the motion, settling the question of whether the therapist must testify in person or on camera or turn over records.
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HIPAA and Subpoenas And Psychotherapy Notes
The first task, when in receipt of a subpoena, is to determine whether the law requires or prohibits disclosure (the law never permits clinical discretion here). Since both state laws and HIPAA regulate record disclosures, the therapist should examine both laws.
HIPAA (Health Insurance Portability and Accountability Act) allows for the release of records in response to a subpoena without the client's consent or even their knowledge. However, HIPAA's preemption clause provides that when HIPAA law conflicts with state law, the law (HIPAA or state) that is more protective of privacy applies. Regarding release of information pursuant to a subpoena, almost all (if not all) state laws are more protective of privacy than HIPAA. What this means is that, even though HIPAA permits disclosure of records (pursuant to a subpoena) without patient authorization, your state (licensing and privilege) laws may prohibit disclosure without authorization. Thus, therapists can generally follow state law rather than HIPAA when deciding whether to disclose records pursuant to a subpoena.
Most states have HIPAA implementation offices or similar agencies, which have done the laborious HIPAA preemption analysis for that state. This information is almost always available online on the state government official web page. (i.e., HIPAA-Ohio: http://hipaa.ohio.gov/toolkit.htm) Additionally, most states professional associations can direct you to a credible source of information regarding the relationships between the states law and HIPAA.
Once the determination is made that the records must be disclosed, HIPAA creates two requirements for the provider – a HIPAA compliant authorization form must be used, and the therapist must disclose only those records specifically described by the subpoena (HIPAA calls this the minimum necessary).
HIPAA describes the information that must be included on a HIPAA-compliant authorization form. The core elements of an authorization can be found here.
HIPAA regulations have introduced a new "minimum necessary" requirement. The "minimum necessary" is new legal language initiated by HIPAA and not covered under most state laws.The HIPAA regulations require therapists to restrict the disclosure of confidential information to the minimum amount of information needed. This "minimum necessary" mandate is quite vague and is open to interpretation, so therapists must be careful in their assessment of how much to disclose. In complex cases, it is advisable to articulate the rationale for release decisions and to seek consultation. The "minimum necessary" requirement does not directly apply to disclosures that are made in response to a patient's signed authorization or to subpoenas, and such a disclosure must specifically describe the information to be released. HHS describes which disclosures are subject to the minimum necessary rule can be found here.
A special concern in regard to subpoenas under the new HIPAA regulations is whether "Psychotherapy Notes" should be included in the disclosed or subpoena records. Psychotherapy Notes is another new term articulated by HIPAA; it refers to a more protected part of the records, which are supposed to be useful to the therapist who writes them and which are maintained separately from the medical record. Psychotherapy Notes are what was previously known as "process notes." There is no mandate that a therapist must keep Psychotherapy Notes, but if one does keeps such notes they must be kept separately from the rest of the individual's medical records.
It is the opinion and recommendations of the writer that:
- Psychotherapists would fair better if they do not keep Psychotherapy Notes. It is confusing and complicated to keep track of what goes in the general records and what belongs in the Psychotherapy Notes.
- Psychotherapists, regardless of whether they keep Psychotherapy Notes or not must always remember that no records are immune from disclosure.
The Psychotherapy Notes are intended primarily for the use of the therapists who created them. Therapists should understand that Psychotherapy notes do not include any document that the therapist uses to make diagnostic or treatment decisions about a patient. Patients have the right to authorize the release of Psychotherapy Notes; however, HIPAA does not require compliance with such requests (although state laws may). Further, patients do not have a right to obtain a copy of Psychotherapy notes (via HIPAA's patient access provision 164.524), although state laws might require such access.
The question of whether Psychotherapy Notes should be disclosed as part of a court-ordered subpoena is complicated because state laws do not recognize or use the term Psychotherapy Notes and therefore do not have statutes that cover the topic. However, courts are unlikely to distinguish between different kinds of records and, if there is no privilege, will likely rule that psychotherapy notes must be disclosed (see, e.g., Evenson v. HARTFORD LIFE AND ANNUITY INSURANCE COMPANY, No. 6: 07-cv-224-Orl-28UAM (M.D. Fla. Sept. 28, 2007).) Further, the term Psychotherapy Notes is often used to refer to progress notes; if the subpoena uses the term Psychotherapy Notes, the therapist should obtain clarification from the requestor.
HIPAA requires that the subpoena and/or court order specifically state that the request is for psychotherapy notes, and requires that the patient complete a separate authorization form.
For further information:
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Subpoena of Test Data and/or Materials
Subpoena of test data and test materials is one of the most controversial and difficult issues with regard to release of records. Unlike cases requesting the release of clinical records, such as billing and clinical notes, the release of test data involves trade secrets (CA case essentially gutted this argument). The controversy has been raised primarily by the publishers of test materials, who are concerned that disclosing of protocols, record forms, raw data or entire test kits can affect the utility, integrity and validity of the tests and, ultimately, negatively impact on their economic interests. The primary concern is that some protocols (even though they are test data) overlap with or otherwise reveal the test stimuli (thus making them also test materials). The concerns around disclosure of test data and the considerable amount of money and profit involved-make this a volatile issue. Since the HIPAA regulations came into effect in 2003, several test publishers have sought a remedy in the legal system to what they believe is a potential threat to test integrity and reliability, and, in effect, to their entire industry. In response to test publishers' concerns over trade secrets, several experts have pointed out that entire test kits are now available online, including instructions how to manipulate the responses so certain results are obtained.Therapists are also advised that they may have a contractual or legal obligation not to disclose certain test-related information. There may also be an ethical obligation, to protect the integrity and security of test information to avoid misuse of assessment techniques and data.
When a valid subpoena requests the disclosure of raw data, therapists may respond by offering to provide the raw data to a qualified professional, explaining their ethical and legal obligations. Test kits, whose purchase is restricted by the publisher to "qualified users," should also generally be withheld, due to the therapist's contractual obligations with the publisher. The problem, however, is that the court may not accept such a response and demand that the entire test data be submitted. Clinicians who have clients' permission to disclose test data, or who receive a valid subpoena seeking test data or test materials sold only to professionals (e.g., psychological test kits or record forms), are in a legal and ethical bind, and should consult with their attorney.
For further information:
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Crime Victims' Rights Laws
Note: The following section on "Crime Victim's Rights Laws" was written by staff of the National Crime Victim Law Institute, www.ncvli.org, 503.768.6953. It is published unedited and all inquiries should be directed to National Crime Victim Law Institute.
If the subpoena arises out of or as a result of the client's status as a crime victim, the law in many jurisdictions may obligate the requesting party, the courts, or the record holders to give the client notice of the subpoena and allow the client to refuse disclosure. All fifty states, the District of Columbia, and the federal government have enacted constitutional, statutory, or rule-based protections for crime victims. Many of those laws provide crime victims with, among others, the rights to privacy, to refuse defense-initiated discovery requests, to prevent from disclosure confidential or privileged information, to notice of subpoenas for their records, to be free from intimidation, harassment or abuse, and to be treated with fairness and respect. For example, the California Constitution provides crime victims with the right "[t]o prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law." Cal. Const., art. I, § 28(b)(4).
Because these laws are relatively new in most jurisdictions and few legal challenges have resulted in published case law, many therapists and their attorneys are not aware that producing a client's therapy records in response to a facially valid subpoena without the client's authorization may, in some cases, be in violation of a client's statutory or constitutional legal protections and may "chill" the client's willingness to report crimes and access justice. Upon receipt of a subpoena, therapists should determine whether the subpoena seeks the records of a client who is also a victim in a criminal case. If the client is a crime victim, therapists should not disclose the client's records unless they have specific authorization from the client, have consulted with an attorney familiar with crime victims' rights laws, and/or are instructed by the court to specifically do so after they or their client have argued the case by way of a motion to quash the subpoena which included assertion of victims' rights provisions of law.
For further information:
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The USA Patriot Act
Following the events of September 11th, 2001, Congress passed the USA Patriot Act. The purpose of the legislation is to make it easier for law enforcement to act to prevent future acts of terrorism. As part of this new legislation, Section 215 of the Patriot Act authorizes certain FBI agents to request a subpoena from a special court. These FBI subpoenas can require access to any requested records, and the subject of the investigation (i.e., the patient) may not be notified. Revealing to clients that their clinical records have been subpoenaed by the FBI could result in serious penalties. In general, clinicians are expected to assert the privilege to confidentiality on behalf of their clients. As emphasized in this article, clinicians are encouraged to notify clients when their records are being subpoenaed and to see clients' signed authorization-to-release-records form before releasing any information. Under Section 215 of the USA Patriot Act, these options would not be permitted. In fact, many of the options typically available to psychologists are illegal under section 215. Initially it was not even clear whether legal representation to assert the privilege before the court is an option. It may be impermissible to tell anyone that a subpoena has been received, or even to get legal consultation on the matter. Section 215 requires disclosure of the documents and anything else is apparently punishable by sanctions.
The Patriot Act stipulations can create a compromised situation for a clinician, where a client's entire treatment records are released to an FBI agent without the client's knowledge of the disclosure. It is difficult to imagine that continuation of the treatment would be in the best interests of the patient, since the treating psychotherapist is, in fact, acting as an informant rather than therapist. Continuing treatment under such circumstances may be harmful to the client, as these records may be under a subpoena to continuously disclose to the FBI. This circumstance itself is a clear violation of the Hippocratic oath of "Do no harm," and probably runs counter to most professional codes of ethics, which also emphasize avoiding harm.
With joined efforts of several professional associations, raising serious concerns regarding privacy issues, a new legislation was signed in law on March 1, 2006. It includes requirements that FBI agents show prior written approval and show reasonable, factual grounds to believe that the records sought under Section 215 are relevant to a terrorism investigation. It also includes a requirement that requested records are identified are actually pertain to the activities of a suspected terrorist or person in contact with a suspected terrorist. Most importantly, the new legislation allows the recipient of a records request to consult with an attorney and file a challenge to a records request with a FISA court judge. In short, therapists, consult, consult and consult.
At the heart of the conflict resulting from provisions in the Patriot Act is the tension between individual rights and communal or societal rights. While many cultures, such as China and the Soviet Union give higher priority to communal and societal needs, the US's priorities are exactly the reverse. The concern and outcry regarding the Patriot Act is a direct response to this shift in US law that, uncharacteristically, gives priority to national security at the expense of individual rights. According to some sources, as of 2005, the Department of Justice indicated that no requests for medical records had ever been made under the provision since its 2001 passage.
Like several other codes, Section 1.02 of the Ethics Code of the American Psychological Association (APA, 2002), addresses and absolves psychologists in such compromised circumstances by permitting psychologists to obey the law, without fear of violating the Ethics Code. While the therapist may be protected by the professional code of ethics in such a situation, they still face irreconcilable ethical, clinical and moral dilemmas. Some experts have suggested resolving this kind of dilemma by terminating the relationship with the client. This option raises a whole new set of obvious clinical, ethical and legal complications, including concerns with abandonment and harm. Referring the client to another professional would not likely resolve the ethical, moral and legal dilemma. Some authors have suggested amending the Therapist's Office Policies to include a section on the Patriot Act and its possible impact on confidentiality. While reasonable, this response does little to mitigate the consequences that therapists and patients face in such situations.
For further information:
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Jaffee vs. Redmond
On June 21, 1996, the U.S. Supreme Court established the psychotherapist-patient privilege in the Federal Courts. In Jaffee vs. Redmond the Supreme Court ruled to protect the psychotherapist-patient privilege in the federal courts. This important decision was the ultimate societal expression acknowledging the need to provide absolute protection from disclosure of communications between psychotherapists and their patients. Justice Stevens, in the Majority Opinion, based his opinion on long-established principles and addressed the importance of the need for privacy in psychotherapy: "Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment."
Justice Stevens also acknowledged something that many psychologists ignore. Confidentiality is more important than informed consent. We must strive to protect the privacy of our patients, not simply inform them that there is no privacy. As Justice Stevens wrote:
"(T)he participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."
For further information:
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Codes Of Ethics
Most professional codes of ethics provide guidelines in regard to confidentiality and release of confidential information. Following are sections from codes of ethics:
Codes of Ethics on Confidentiality
Codes of Ethics on Record Keeping
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Each state in the USA has its own set of laws in regard to subpoenas and requests for records.
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Guidelines: How To Respond To A Subpoena
- When receiving a subpoena neither ignore nor send records. A therapist does not need to automatically respond to the subpoena and uncritically send the records. However always respond, even by stating something like "I cannot comply". Again, consult with an attorney.
- Therapists should not release confidential and/or privileged information or surrender any documents or records to the person serving the subpoena no matter how aggressive the request is. The subpoena document should be accepted, and the psychologist should then evaluate the situation and, when necessary, obtain legal counsel regarding applicable law and resulting obligations.
- When being served with a subpoena, therapists should neither acknowledge that they know or treated the person whose records are being subpoena. They can simply say: "I am not allowed and cannot disclose whether or not the person noted in the subpoena is known to me or has been under my care. If the person has been my client, I could not provide any information without a signed release from that individual or a valid court order."
- Do not attempt to avoid being served a subpoena. It is unrealistic and probably unprofessional.
- After receiving a subpoena therapists should carefully determine its validity, who initiated it and whether it is in fact a court order.
- Obtaining an authorization to release information from clients is one of the better and simpler ways to deal with subpoenas.
- Contacting the clients, when appropriate, is very important. Sometimes clients are willing to sign an authorization to release information and want the therapist to respond fully to the subpoena.
- Before responding to a subpoena consider the source of the subpoena, client's welfare, other people's welfare, state and federal laws (i.e., HIPAA, Patriot Act, copyright laws), codes of ethics, and, where applicable, your contractual relationships to test publishers.
- Sometimes providing only a summary of the treatment rather than the entire file may be acceptable to clients, attorneys and courts.
- Provide the minimum information necessary. However, some situations may demand that you release the entire file.
- If a signed authorization to release form is included, but the therapist believes that the material may be clinically or legally damaging, he/she should discuss these issues with the client before releasing the records. If the client still insists on such a release, the therapist should note in their records their concerns and should document the discussion with the client. As always, seek consultations in complex situations.
- Be careful with subpoenas that are issued from another state. They may be insufficient to compel a testimony.
- When the subpoena request includes tests' protocols, record forms, raw data or entire test kits, be aware and cautious of copyright laws, your contract with the publisher as well as federal and state laws. Consult with expert counsel and/or explain to the judge, if and when necessary, about the potential conflict between the subpoenas, professional codes of ethics and copyrights laws.
- Do not release the Psychotherapy Notes (if you have any) unless specifically ordered by the court or have received a written authorization to release this part of the records.
- Consult with knowledgeable experts, attorneys or the attorney of your malpractice insurance.
For Further General Reading:
- Board of Professional Affairs, Committee on Professional Standards (1987). General Guidelines for Providers of Psychological Services. American Psychologist, 42(7), 712-723.
- Committee on Legal Issues, American Psychological Association (1996). Strategies for private practitioners coping with subpoenas or compelled testimony for client records of test data. Professional Psychology: Research and Practice, 27, 245- 251.
- Committee on Professional Standards (1981). Specialty Guidelines for the Delivery of Services by Clinical Psychologists. American Psychologist, 36(6), 640-651.
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Sections of Codes of Ethics Relevant to Subpoena and Disclosure on of Records
Following are sections of some professional organization that are relevant to subpoenas and other situations related to disclosures and release of records and test data:
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APA Code of Ethics of 2010:
1. Resolving Ethical Issues
1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority
If psychologists' ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.
4. Privacy And Confidentiality
4.01 Maintaining Confidentiality
Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship. (See also Standard 2.05, Delegation of Work to Others.)
4.02 Discussing the Limits of Confidentiality
(a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities. (See also Standard 3.10, Informed Consent.)
(b) Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.
(c) Psychologists who offer services, products, or information via electronic transmission inform clients/patients of the risks to privacy and limits of confidentiality.
4.04 Minimizing Intrusions on Privacy
(a) Psychologists include in written and oral reports and consultations, only information germane to the purpose for which the communication is made.
(b) Psychologists discuss confidential information obtained in their work only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters.
(a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law.
(b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (See also Standard 6.04e, Fees and Financial Arrangements.)
9.04 Release of Test Data
(a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, Maintaining Test Security.)
(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
9.10 Explaining Assessment Results
Regardless of whether the scoring and interpretation are done by psychologists, by employees or assistants, or by automated or other outside services, psychologists take reasonable steps to ensure that explanations of results are given to the individual or designated representative unless the nature of the relationship precludes provision of an explanation of results (such as in some organizational consulting, preemployment or security screenings, and forensic evaluations), and this fact has been clearly explained to the person being assessed in advance.
9.11. Maintaining Test Security
The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.
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California Association of Marriage and Family Therapists - Ethical Standards Part I
Marriage and family therapists have unique confidentiality responsibilities because the "patient" in a therapeutic relationship may be more than one person. The overriding principle is that marriage and family therapists respect the confidences of their patient(s).
Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.
When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.
Marriage and family therapists are aware of the possible adverse effects of technological changes with respect to the dissemination of patient information, and take reasonable care when disclosing such information. Marriage and family therapists are also aware of the limitations regarding confidential transmission by Internet or electronic media and take extra care when transmitting or receiving such information via these mediums.
Marriage and family therapists store, transfer, transmit, and/or dispose of patient records in ways that protect confidentiality.
Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of patients is maintained by their employees, supervisees, assistants and volunteers.
Marriage and family therapists use clinical materials in teaching, writing, and public presentations only if a written authorization has been previously obtained in accordance with 2.1 d, or when appropriate steps have been taken to protect patient identity.
Marriage and family therapists, when working with a group, explain to the group the importance of maintaining confidentiality, and are encouraged to obtain agreement from group participants to respect the confidentiality of other members of the group.
8. RESPONSIBILITY TO THE LEGAL SYSTEM
Marriage and family therapists recognize their role in the legal system and their duty to remain objective and truthful.
Marriage and family therapists who give testimony in legal proceedings testify truthfully and avoid making misleading statements.
Marriage and family therapists who act as expert witnesses base their opinions and conclusions on appropriate data, and are careful to acknowledge the limits of their data or conclusions in order to avoid providing misleading testimony or reports.
Marriage and family therapists avoid, wherever possible, performing conflicting roles in legal proceedings and disclose any potential conflicts to prospective clients, to the courts, or to others as appropriate.
Marriage and family therapists, regardless of their role in a legal proceeding, remain objective and do not compromise their professional judgment or integrity.
Marriage and family therapists do not express professional opinions about an individual's mental or emotional condition unless they have conducted an examination of the individual, or unless they reveal the limits of the information upon which their professional opinions are based, with appropriate cautions as to the effects of such limited information upon their opinions.
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Code of Ethics of the National Association of Social Workers 2008
Instances may arise when social workers' ethical obligations conflict with agency policies or relevant laws or regulations. When such conflicts occur, social workers must make a responsible effort to resolve the conflict in a manner that is consistent with the values, principles, and standards expressed in this Code. If a reasonable resolution of the conflict does not appear possible, social workers should seek proper consultation before making a decision.
1.07 Privacy and Confidentiality
(a) Social workers should respect clients' right to privacy. Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research. Once private information is shared, standards of confidentiality apply.
(b) Social workers may disclose confidential information when appropriate with valid consent from a client or a person legally authorized to consent on behalf of a client.
(c) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.
(d) Social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.
(e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients' right to confidentiality. Social workers should review with clients circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social worker-client relationship and as needed throughout the course of the relationship.
(f) When social workers provide counseling services to families, couples, or groups, social workers should seek agreement among the parties involved concerning each individual's right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements.
(g) Social workers should inform clients involved in family, couples, marital, or group counseling of the social worker's, employer's, and agency's policy concerning the social worker's disclosure of confidential information among the parties involved in the counseling.
(h) Social workers should not disclose confidential information to third-party payers unless clients have authorized such disclosure.
(i) Social workers should not discuss confidential information in any setting unless privacy can be ensured. Social workers should not discuss confidential information in public or semipublic areas such as hallways, waiting rooms, elevators, and restaurants.
(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client's consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.
(k) Social workers should protect the confidentiality of clients when responding to requests from members of the media.
(l) Social workers should protect the confidentiality of clients' written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients' records are stored in a secure location and that clients' records are not available to others who are not authorized to have access.
(m) Social workers should take precautions to ensure and maintain the confidentiality of information transmitted to other parties through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology. Disclosure of identifying information should be avoided whenever possible.
(n) Social workers should transfer or dispose of clients' records in a manner that protects clients' confidentiality and is consistent with state statutes governing records and social work licensure.
(o) Social workers should take reasonable precautions to protect client confidentiality in the event of the social worker's termination of practice, incapacitation, or death.
(p) Social workers should not disclose identifying information when discussing clients for teaching or training purposes unless the client has consented to disclosure of confidential information.
(q) Social workers should not disclose identifying information when discussing clients with consultants unless the client has consented to disclosure of confidential information or there is a compelling need for such disclosure.
(r) Social workers should protect the confidentiality of deceased clients consistent with the preceding standards.
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Addendum: California Business and Professions Code on Subpoena:
Codes are available at: http://www.psychology.ca.gov/laws_regs/index.shtml
Article 4. Denial, Suspension and Revocation, 2969.
(a) (1) A licensee who fails or refuses to comply with a request for the medical records of a patient, that is accompanied by that patient's written authorization for release of records to the board, within 15 days of receiving the request and authorization, shall pay to the board a civil penalty of one thousand dollars ($1,000) per day for each day that the documents have not been produced after the 15th day, unless the licensee is unable to provide the documents within this time period for good cause.
(2) A health care facility shall comply with a request for the medical records of a patient that is accompanied by that patient's written authorization for release of records to the board together with a notice citing this section and describing the penalties for failure to comply with this section. Failure to provide the authorizing patient's medical records to the board within 30 days of receiving the request, authorization, and notice shall subject the health care facility to a civil penalty, payable to the board, of up to one thousand dollars ($1,000) per day for each day that the documents have not been produced after the 30th day, up to ten thousand dollars ($10,000), unless the health care facility is unable to provide the documents within this time period for good cause. This paragraph shall not require health care facilities to assist the board in obtaining the patient's authorization. The board shall pay the reasonable costs of copying the medical records.
(b) (1) A licensee who fails or refuses to comply with a court order, issued in the enforcement of a subpoena, mandating the release of records to the board shall pay to the board a civil penalty of one thousand dollars ($1,000) per day for each day that the documents have not been produced after the date by which the court order requires the documents to be produced, unless it is determined that the order is unlawful or invalid. Any statute of limitations applicable to the filing of an accusation by the board shall be tolled during the period the licensee is out of compliance with the court order and during any related appeals.
(2) Any licensee who fails or refuses to comply with a court order, issued in the enforcement of a subpoena, mandating the release of records to the board, shall be subject to a civil penalty, payable to the board, of not to exceed five thousand dollars ($5,000). The amount of the penalty shall be added to the licensee's renewal fee if it is not paid by the next succeeding renewal date. Any statute of limitations applicable to the filing of an accusation by the board shall be tolled during the period the licensee is out of compliance with the court and during any related appeals.
(3) A health care facility that fails or refuses to comply with a court order, issued in the enforcement of a subpoena, mandating the release of patient records to the board, that is accompanied by a notice citing this section and describing the penalties for failure to comply with this section, shall pay to the board a civil penalty of up to one thousand dollars ($1,000) per day for each day that the documents have not been produced, up to ten thousand dollars ($10,000), after the date by which the court order requires the documents to be produced, unless it is determined that the order is unlawful or invalid. Any statute of limitations applicable to the filing of an accusation by the board against a licensee shall be tolled during the period the health care facility is out of compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with a court order, issued in the enforcement of a subpoena, mandating the release of records to the board, shall be subject to a civil penalty, payable to the board, of not to exceed five thousand dollars ($5,000). Any statute of limitations applicable to the filing of an accusation by the board against a licensee shall be tolled during the period the health care facility is out of compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b) shall be a misdemeanor punishable by a fine not to exceed five thousand dollars ($5,000) or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Multiple acts by a health care facility in violation of subdivision (b) shall be a misdemeanor punishable by a fine not to exceed five thousand dollars ($5,000) and shall be reported to the State Department of Health Services and shall be considered as grounds for disciplinary action with respect to licensure, including suspension or revocation of the license or certificate.
(d) A failure or refusal of a licensee to comply with a court order, issued in the enforcement of a subpoena, mandating the release of records to the board constitutes unprofessional conduct and is grounds for suspension or revocation of his or her license.
(e) The imposition of the civil penalties authorized by this section shall be in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code.
(f) For purposes of this section, "health care facility" means a clinic or health facility licensed or exempt from licensure pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.
(Bold emphasis was added)
Borkosky, B & Smith, D.M. (2015) The risks and benefits of disclosing psychotherapy records to the legal system: What psychologists and patients need to know for informed consent. International Journal of Law and Psychiatry, 42, 19-30.
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