Have you ever subpoenaed a therapist or evaluator for their records or testimony, only to be told ‘no’ and been left frustrated? Ever find yourself arguing with a psychologist to try to tell them why they must release their records or appear for testimony despite their refusal? This article will explain the point of view of the psychologist, who must follow any related HIPAA rules, the APA Ethics Code, and the ethical and best practice guidelines of their state licensing board. Understanding this in more depth can help attorneys frame their requests in a way that they are able to get what they need for their case. Notably, psychologists who work in forensics, and especially those who are involved with family court cases, receive the most board complaints, so they approach requests for records and testimony with caution; we include herein a direct communication from the NC Psychology Board to illuminate this issue for you.
Cases involving one adult client are the least complicated. HIPAA guidelines are fairly straight-forward regarding getting consent of the client for release of information.
- If the subpoena is signed by an attorney versus the judge, for the records of an adult client, the psychologist must contact the client to get their consent for the release of information via written records or via testimony. If the client does consent, the psychologist should comply. If the client does not consent, the psychologist must reply to the subpoena explaining the client does not consent, thus a court order would be required.
- If the psychologist receives a court order, the psychologist should release information (records, or release information via testifying).
- In rare cases with an adult client, the psychologist may note that release of therapy session notes would compromise the therapeutic relationship and thus may ask if sending a treatment summary could suffice. Ideally in this instance the attorney can get what they need for their case without the client having the ability to see the session notes. If therapy is helping a client, having a solid therapeutic relationship be ruptured by the client seeing the therapy session notes can have a large negative impact on the client’s life.
With evaluations, if you request psychological test data versus just the report, it there is more complexity as there is an ethical aspect in the APA Ethics Code the psychologist must follow.
- If an attorney requests test data, we follow the same guidelines as above for getting consent from the client, but we also respond: “Regarding your request for test data, that will not be released herein, as per our Ethics Code psychologists must exercise their professional responsibility to limit access to test data (e.g., test items, test forms, test responses, test scoring, or test protocols) to only qualified professionals in psychology and avoid disclosure of secure testing material to unqualified persons. Should we receive a court order to release test data to a qualified professional (ex. PhD, PsyD or MA in psychology), then we would do so.”
- If there is a court order signed by a judge for test data to be released, we must release that information (records to include test data) but still only to a qualified professional. Thus note, if being ordered to send test data, the order should indicate what qualified professional (ex. PhD, PsyD or MA in psychology) we should send the test data to; that is, test data should not just go to the judge and attorneys; you should have hired an expert in psychology to receive and review test data.
Cases involving children are the most complicated as these records are often being subpoenaed for use in family court. Family court cases account for the vast majority of board complaints that psychologists must contend with. Most are unfounded, but psychologists will proceed with caution when responding to subpoenas in cases that involve children. In more child therapy cases than adult cases, the psychologist may believe that release of therapy session notes would compromise the therapeutic relationship with the child, and thus may ask if sending a treatment summary could suffice. If therapy is helping a child client, having a solid therapeutic relationship be ruptured by knowing their parents have seen their therapy session notes can have a large negative impact on the child’s life. If a treatment summary will not suffice, anything the attorney can do to ensure via an order that the child’s therapy notes are not read by parents, and must be destroyed at the end of the case and thus protected from accidentally being re-released, is incredibly helpful.
The biggest area of complexity with children lies in who can give consent for information to be released via records or testimony, as HIPAA may only require any parent with legal custody consents, but best practice according to the psychology board is to have the consent of both parents or a court order in cases of shared legal custody. Additionally, there is a difference between releasing the record to the parent versus to an attorney; while legally a parent may be allowed access to a child’s medical record, it is still a separate issue for a psychologist to release the information to a third party such as an attorney or the court. Here is how psychologists balance this all:
Sole Legal Custody:
- Records to Parent: A parent with sole legal custody can be given a copy of the child’s session notes or a treatment summary without the consent of the other parent.
- Records to Third Parties: A parent with sole legal custody can request records to be sent to a third party without the consent of the other parent.
- Testimony: A parent with sole legal custody can request the child’s clinician to testify without the consent of the other parent.
Shared Legal Custody:
- Records to Parent: A parent with shared legal custody can be given a copy of the child’s session or a treatment summary without the consent of the other parent.
- Records to Third Parties: Records cannot be sent to a third party unless both parents consent. (However, the parent can get a copy for themselves and share it with the 3rd party. Attorneys often do not like this option because those records are not considered verified since the parent could have tampered with them, in theory).
- If both parents consent, the child’s record can be released to the third party.
- If both parents won’t consent to release of records to a third party, the attorney can seek a court order.
- Testimony: A parent with shared legal custody can request the child’s clinician to testify if both parents consent to testimony.
- If both parents consent, the clinician can testify.
- If both parents won’t consent to testimony, the attorney can seek a court order.
- If both parents won’t consent to testimony, and there is not time to get a court order, another option is for the attorney and client to retain the clinician to show up and out of the gate when the clinician is first sworn in, explain to the judge the lack of dual consent and the need for the judge to order testimony verbally into the record. There is a financial risk to the client in this option as they must pay the psychologist’s retainer even though there remains the uncertainty that the judge may not decide to order testimony, then they still pay for the clinician’s prep time and time at court even if no testimony is given. But it can be a good option if the attorney feels it is important to try to get the testimony in and feels likely the judge will order the testimony once the clinician is there.
For additional context on how the NC Psychology Board directs psychologists regarding release of information in a family court case, we will share with you their response to such a question. On 3/30/2018, Dr. Tina Lepage posed this question to the NC Psychology Board as it comes up so often: Subject line of email to the Board: “Question Regarding Release of a Child’s PHI to 3rd Party, Specifically Release of Written Records to Attorney or Verbal Info in Testimony Minus Both Parents’ Consent.” Dr. Lepage asked if a child’s records can be provided to a third party via written record or verbal testimony minus the consent of both parents when both have shared legal custody. The response from the Board was as she thought: Even though it is legal per HIPAA to release with consent of only one (just like it is legal per HIPAA to treat children with the consent of only one parent), the Board also considers if it is ethical (i.e., best practice), and while the Board can’t say how they would rule in any complaint, they do advise best practice is a court order when both parents don’t consent. Per the Board in their response on 4/2/2018: “I believe the consent of one parent is sufficient by law, but I would recommend consultation with an attorney or your malpractice insurance to determine if this is the case. I am not an attorney and cannot provide legal advice. I cannot say how the Board would respond to any particular circumstance, as each situation is looked at individually. However, I think the argument is whether or not this is considered to be best practice. If this is related to an ongoing court involvement in a custody dispute, the best practice would likely include to have a court order for release of the records or to have the court rule on what is to be done when one parent wants the records released but the other does not. High conflict cases can leave the psychologist in the middle of a dispute and the use of a court order or court decision can put that decision out of the bounds of the psychologist so that the psychologist may focus on the task at hand and avoid a complaint occurring.”
This places clinicians in a difficult position as the licensing Board would hear/allow a complaint from a parent about release of records without consent from both parents with shared legal custody, because while it might be legal per HIPAA, the Board would consider if the clinician broke best practice, for which there can be repercussions. And while a clinician might ‘win’ a Board complaint brought against them and not be sanctioned, there is still great time, expense, and stress in having to deal with a Board complaint. This is why when psychologists get a request for records to be released to a third party, they ask both parents with legal custody for consent, and if one says no, they request a court order… because it is what the psychology Board has said is best practice.
Lastly, ‘the struggle is real’ when it comes to insufficient time. Upon receiving the subpoena, the psychologist first has to get consent from the client, or from both parents often with child clients, which can take back and forth calls and emails to attain, and may take several days. The office may also have other record requests ahead of yours for processing. For testimony, psychologists’ schedules tend to fill up at minimum two weeks in advance, so a three to four week advance notice for testimony is ideal; more notice is better!
As forensic psychologists, our goal is to be as helpful and responsive to attorneys as possible, while following the boundaries set forth for us by HIPAA, the APA Ethics Code, and the state psychology licensing board.