Confidentiality and Subpoenas
Confidentiality refers to professional ethics, principles, and guidelines governing the disclosure of information obtained in the course of a clinical relationship. Clinicians may be unaware that acknowledging whether or not we are treating a person is a violation of his or her confidentiality. There is a great deal of confusion regarding maintaining a client’s confidentiality, particularly when a subpoena is served.
Communications made by the client during treatment, observations by the therapist, results of psychological and laboratory testing, diagnosis, and prognosis are confidential and cannot be shared with someone else unless the client signs a Release of Information form; however, there are exceptions. One of the exceptions to confidentiality includes court ordered disclosure.
When you receive a subpoena, you MUST NOT respond unless:
- It is a direct Court Order, signed by a Judge; or
- Your client/patient has signed a Release of Information form allowing you to respond.
A subpoena may appear that it is from the Court, because it may contain wording such as, “By and for the Judicial Circuit”, and “Failure to comply will result in contempt of Court”. This is not a Court Order unless signed by a Judge.
First, contact your client and advise that a subpoena has been served and ask whether or not the client wishes you to respond. If yes, have the client sign a Release of Information form allowing you to respond. If the attorney who signed the subpoena phones you, it’s best to say, “Without a signed Release, I may not say whether I do or do not have knowledge of the person named in your subpoena”. This protects the client’s confidentiality because you have not acknowledged that you treat that person.
If the client refuses to sign a Release, the attorney requesting the information must obtain a Court Order compelling you to share information.
If the client signs a release allowing you to respond, or if the subpoena is signed by a judge, be sure to document what you released and to whom. It is vital to limit our response and only share information specifically requested and to do our best to maintain as much confidentiality as possible. Be sure a copy of the subpoena is included in the record.
For more information and education to define Medical Errors as they pertain to the practice of mental health you can sign up for our Medical Errors Prevention course.Sign up for the Medical Errors Course