When a motion is made to subpoena records, and the client resists, in this case Sheila, a psychotherapists may protect the client in many ways. If the psychotherapists feels that releasing the information may be harmful to their client, a motion may be made to “quash the subpoena” to protect the client-therapist privilege and privacy of the client, to maintain Sheila’s privacy (Zur, 2014, para 14). This can also take place if Sheila is a crime victim, of domestic violence or any other action in her divorce. An investigation of victim’s rights laws may be made. As a counselor, attorney’s assistance may be sought in if a therapist wants to quash the subpoena. The court then decides whether the therapist must testify personally or turn over the records that have been subpoenaed (Zur, 2014).
The Health Insurance Portability and Accountability Act or HIPPA does allow a psychotherapist or other provide to release information about a client if a subpoena is issued, however, there is a clause that suggests the state law may conflict and protect clients (Zur, 2014). This is a preemption clause suggesting that data may not necessarily be released simply because a subpoena has been issued. Often these laws suggest that only “minimally necessary information be released” (Zur, 2014). Thus, if the information must be provided, at the therapist’s discretion, only a minimum amount of information may be released to the requesting party to fulfill the obligations of the subpoena. This is subject to interpretation, however. The therapist has a duty to define and assess what minimally necessary is without overly disclosing information that may result in harm to their patient.
The APA has adopted a new Ethics Code that states psychologists also have a duty to avoid “releasing raw test results or raw data to persons, other than patients or clients as appropriate, who are not qualified to use such information” (Behnke, 2003, para 2). This suggests that the test data may not be released to individuals not qualified to receive this information. This may include court personnel or other lawyers that may not have the ability to interpret this information correctly, particularly without the consent or in the presence of a client’s release and authorization. Under legal mandate, there may be some way to work around this however. There is a possibility this information can be abused however, so if not medically necessary, or falling under the clause of least possible information, it would not be beneficial to release this information about Sheila.
- Behnke, S. (2003 July August). Release of test data and APA’s New Ethics Code. American Psychological Association, 34(7): 70. Retrieved January 28, 2014: http://www.apa.org/monitor/julaug03/ethics.aspx
- Zur, O. (2014). “Subpoenas, and How to Handle Them.” Zurinstitute.com. Zur Institute, LLC. Retrieved January 28, 2014 from: http://www.zurinstitute.com/subpoena.html