Must Therapists Respond to Subpoenas?
In the course of legal proceedings, subpoenas are often issued as a means of gathering information. When they are received by clinicians, they are often accompanied by considerable anxiety about how to respond. Indeed, some clinicians wonder whether to respond at all. Many clinicians are under the impression that subpoenas issued by attorneys carry no authority. This is largely incorrect, and here is why: Attorneys licensed to practice law in a state are also considered to be officers of the court, and when they are engaged in litigation before a court they are empowered by the court to issue subpoenas relating to matters at issue. This means that properly drafted subpoenas have the force of law.
What makes things complicated for clinicians is that subpoenas sometimes ask for confidential information, and clinicians have an independent obligation to maintain the confidentiality of patient information. Other times subpoenas ask for information that the clinician feels is irrelevant. What is a clinician to do? Here is where having your own attorney comes in very handy. An attorney is best able to help you understand (1) your legal obligations, and (2) your options.
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2 Responses to “Must Therapists Respond to Subpoenas?”
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Your discussion about responding to subpoenas stopped just short of being helpful to me. Can you provide at least some “basic information” about my legal obligations and my options for responding to subpoenas that ask for “everything and the kitchen sink” without giving too much away (for free)? Thanks. KM
Great question. Also a tough one, too, because the answer to your question is almost entirely situation specific.
It’s common for attorneys to ask for a ton of information in a subpoena. Like mental health clinicians, they need as much information (data) as possible to approach a case. The nature of the discovery process also lends itself to broad requests: subpoenas are usually served during the pretrial phase of a case known as “discovery,” and it is in this phase of litigation that attorneys try to get as much relevant information as they possibly can. Not all of it is admitted at trial, but the discovery process is just that: a period of exploration where attorneys have some latitude to get information that could be helpful in formulating their cases.
Here’s some basic information I hope you’ll find helpful:
1.) You must respond to subpoenas.
2.) However, you have some latitude about how to respond. If you believe the subpoena asks for information that is (a) irrelevant, (b) over-broad, or (c) asks you to divulge information that you suspect could violate another of your legal obligations, you really should consult with an attorney to help you to navigate the waters. You should discuss with an attorney whether/how you should comply, seek to have the subpoena quashed/modified, or attempt to negotiate with the issuing party.
I would recommend that you consult with an attorney who has a good understanding of your existing legal and ethical obligations as a clinician.