Mary Alice Fisher, Ph.D., 2007, revised 2018
Virginia’s two therapist-patient privilege statutes ( § 8.01-399 and § 8.01-400.2 ) are much less protective of patient confidentiality than the privilege statutes in most other states (Glosoff et al., 1997). (See Note 1, below.) This means that communications between Virginia therapists and their patients are less protected in court cases than would be true in most states. This, in turn, means that Virginia attorneys are more accustomed to seeking and obtaining information or testimony from mental health professionals, especially in child custody cases. As Virginia attorneys Coughter and Tweel (2002) acknowledged, “lawyers and judges have been accustomed to breaching this area of confidentiality” (p. 170, emphasis added). In other words, attorneys take advantage of Virginia’s “judicial discretion exception to privilege” by routinely issuing subpoenas for mental health records on the presumption that the judge will find them admissible. This wholesale use of subpoena power to obtain information from therapists and therapy records is not possible in most states.
It is therefore especially important for Virginia mental health professionals to understand their ethical responsibilities and to know how to exercise their legal options when they receive a subpoena. If the patient does not want the requested information to be used as evidence in a court proceeding, filing a “motion to quash” is an essential step, both ethically and legally: Ethically it is important for protecting the confidentiality rights of patients (APA Committee on Legal Issues, 2006; Bennett et al., 2006; Koocher & Keith-Spiegel, 2008). Legally it is important because of both Virginia law (including the Virginia Supreme Court decision in Fairfax Hospital v. Curtis ,1997) and Federal HIPAA regulations (U.S. Department of Health & Human Services (HIPAA), 2009).
Below, we provide some comments and recommendations about this issue, first from an ethical perspective, then from a legal perspective, and finally some advice from a risk-management perspective.
Ethically, when a client gives consent for information to be released, it must be informed consent. Therefore, in the context of a subpoena, the client should first be informed about the content of the records (or about the potential nature of the requested testimony) before giving consent for information to be released. Once so informed, the client’s consent gives the mental health professional the ethical freedom to disclose the requested information in response to a subpoena. In the absence of that informed consent from the client, there is no ethical basis for releasing the information unless a judge so orders. That is because subpoenas — although they do demand some action — do not carry the same legal weight as a judge’s order.
It is ethically important to know the legal difference between a discovery subpoena (which can be issued by an attorney) and a court order (issued by a judge). When there is a pending legal case, attorneys often issue a “discovery” subpoena requesting available records, or requesting an appearance by the therapist to give a deposition. The attorney’s goal is to try to “discover” in advance what evidence might be available. Contrary to the legal advice they might receive from the attorney who issued the subpoena (and sometimes even from the client’s attorney), unless the client has given informed consent for the information to be released, Virginia therapists have both an ethical responsibility and a legal responsibility ( Fairfax Hospital v. Curtis, 1997) to see that someone files a motion requesting that the judge quash the subpoena. Until then, the judge ordinarily has no knowledge that the subpoena has been issued. Filing the “motion to quash” permits the judge to make the final decision about whether disclosure is legally required, either by quashing the subpoena and issuing a protective order, or by issuing a court order requiring that the information be disclosed.
A respected ethics text explains it as follows:
Understanding the difference between a subpoena and a court order becomes critically important. A subpoena simply compels a response, and in some jurisdictions [including Virginia] an attorney can obtain one simply by asking the court clerk. . . . A court order, on the other hand, typically flows from a hearing before a judge and compels a disclosure unless appealed in a higher court. In the end, the court must decide what qualifies as protected or not. (Koocher & Keith-Spiegel, 2008, pp. 209-210).
Fisher, in the APA Handbook of Ethics in Psychology, explained it similarly:
It is ethically and legally important for psychologists not to treat an attorney’s discovery subpoena as if it had the legal authority of a judge’s court order. It is a legal mistake to ignore a subpoena: One must respond in some manner within a specified time; otherwise, one may lose the right to respond later. At the other extreme, it is an ethical mistake (and in some states [including Virginia] also a legal mistake with legal consequences) to treat a subpoena as if it were a court order and disclose too quickly, without notifying the client or attempting to limit or prevent the disclosure. (Fisher, 2012, p. 352)
There are ways of determining whether what you have received is a subpoena or a court order:
A court order may look similar to a subpoena, but legally it is a very different document, and this legal difference has important ethical implications. The issuance of this court order indicates that the case has been reviewed by a judge. The judge can either order that the requested information be disclosed, or can issue a protective order that prevents it from being “discovered” or admitted as evidence. Although the documents are similar, a court order can be distinguished from a subpoena by the fact that it is ordinarily identified as a court order on the first page, and it will be signed by the judge, not by a court clerk or an attorney. (Fisher, 2013, p. 104)
If you are still not sure which document you have, consider this advice: “If you are not sure whether the document is a court order, you may contact the court that issued the document and ask to speak to the judge’s clerk” (APA Practice Organization, Legal and Regulatory Affairs Staff, 2008, p. 3).
If what you have received is a subpoena, you need to determine exactly what is being requested:
There are two types of subpoenas. The first type of a subpoena requires the attendance of the person named in the subpoena at a specified time and place for the purpose of being questioned under oath concerning a particular matter that is the subject of an investigation or legal proceeding. The second type of subpoena, a subpoena duces tequm, is a request for documents. The subpoena duces tequm will describe the types of records requested and will contain a specific time, date, and place in which the psychologist is requested to supply the records. Both types of subpoenas are printed documents that are stamped or signed by the clerk of court, the prothonotary’s office, or an attorney. The exact form of a subpoena varies from jurisdiction to jurisdiction. (Baturin, Knapp & Tepper, 2003 ).
In their ethics text, Koocher & Keith-Spiegel (2008) recommend that upon receipt of either type of subpoena you should “. . . contact your client, explain the situation, and ask for permission to talk with his or her attorney . . . .” (p. 210). It is ethically important that the conversation with the client’s attorney be initiated only with the client’s written consent (even if the attorney advises that it is not legally necessary).
Does the patient want the information to be disclosed? The client has the option of giving informed consent for the requested information to be disclosed in response to the subpoena. In other words, if the client has been informed about the nature of the information that might be disclosed and informed about the potential implications of disclosing it, and the client does not object to its being disclosed as evidence in the court case, then the patient can sign a release form giving consent. In that case, the mental health professional is ethically free to provide the information in response to a subpoena alone.
Does the patient object to having the information disclosed? If the patient does not want any information to be disclosed in response to the subpoena, the conversation with the patient’s attorney should include a discussion of filing a motion asking the judge to quash the subpoena. In preparing for the conversation with the client’s attorney, remember that attorneys are not always aware of your professional and ethical obligations about subpoenas, and they may suggest that a motion to quash does not need to be filed. However, unless the patient has made an informed decision to release the information and has given you written consent to release it, you have no ethical basis for disclosing the information unless a judge so orders.
The legal “motion to quash” can be filed with the court by the client’s attorney, by your attorney, or by you. (If you will be filing the motion yourself, we provide a website a page called “Motion to Quash a Subpoena Duces Tecum,” which contains two Sample Motion to Quash Forms, plus arguments that can be used to support the motion). Once a motion to quash has been filed, Virginia judges have some very broad options for protecting mental health records under the Health Records Privacy Statute (see §32.1-127.1:03; paragraph H, 6). For example, Virginia judges may now consider: (1) the specific purpose for which the information was collected; (2) the degree to which disclosure would embarrass, injure, or invade the privacy of the individual; (3) the effect of the disclosure on the individual’s future health care; (4) the importance of the information to the lawsuit or proceeding; and (5) any other relevant factor.
If an attorney will be filing the motion to quash the subpoena, remind the attorney to use these and other relevant arguments when filing the motion. If you want to file the motion yourself, this website contains a sample “Motion to Quash” form. (See Note 2, below.)
In the Virginia Supreme Court Case of Fairfax Hospital v. Patricia Curtis, the court awarded $100,000 to Patricia Curtis because the hospital had released her medical information in the context of a court case “without a judicial determination that the plaintiff’s physical condition was at issue in the case, and without the determination that disclosure of those records was required” (emphasis added). In other words, the hospital had released information without a judge’s order that legally required it to be disclosed.
The court further stated that patient information could be legally disclosed without a patient’s consent only if there was (1) a “statutory command” (e.g., a reporting law) or (2) “serious danger to the patient or others.” In any other situation, short of a “judicial determination” (i.e., a court order), the court ruled that “a health care provider owes a duty to the patient not to disclose information gained from the patient during the course of treatment without the patient’s authorization, and that violation of this duty gives rise to an action in tort . . .” In other words, unless there is a reporting law or a danger to self or others, a client who has not given consent for disclosure can sue a mental health professional for voluntarily disclosing information in the absence of a court order, even in the context of a court case.
One Virginia attorney described this case as “a lawsuit waiting to happen.” That was because the court did not include “responding to a subpoena” in the list of legally-acceptable disclosures that can be made without the patient’s consent. The court explicitly ruled that someone could sue a mental health professional for releasing information inappropriately. The attorney who made that prediction knew that most Virginia mental health professionals were unaware of that danger.
At the federal level, the HIPAA regulations (at 45 C.F.R. § 164.512(e)) similarly protect patient information. The website of the U.S. Department of Health and Human Services (HSS) interprets these regulations and describes the responsibility to obtain a court order in the following paragraphs about “Court Orders and Subpoenas”
A covered health care provider or health plan may disclose protected health information required by a court order, including the order of an administrative tribunal. However, the provider or plan may only disclose the information specifically described in the order.
A subpoena issued by someone other than a judge, such as a court clerk or an attorney in a case, is different from a court order. A covered provider or plan may disclose information to a party issuing a subpoena only if the notification requirements of the Privacy Rule are met. Before the covered entity may respond to the subpoena, the Rule requires that it receive evidence that reasonable efforts were made to either:
- notify the person who is the subject of the information about the request, so the person has a chance to object to the disclosure, or to
- seek a qualified protective order for the information from the court.
Risk Management Perspective
Consider the advice below from a risk-management handbook published by a malpractice insurer, the American Psychological Association Insurance Trust:
In general, a psychologist may only disclose information with the consent of the patient or in response to a court order. The receipt of a subpoena alone without the consent of the patient does not override this requirement. A court order, however, overrides the need to obtain patient consent. . . .
Psychologists are required to respond to a subpoena, but they are prohibited from releasing records merely upon the receipt of a subpoena. In most instances, the psychologist should inform the requesting party, in writing, that the receipt of a release of information form (authorization) signed by the patient is required prior to releasing information in response to a subpoena. . .
Unfortunately, many attorneys do not understand that psychologists have limited discretion for releasing records. Attorneys representing patients (or sometimes attorneys representing parties adverse to the patient’s interests) may misinform psychologists of their legal obligations and instruct them to release records in response to a subpoena alone. Do not be bullied by these tactics. It is best to seek legal consultation in situations in which the requirements are unclear. … A court order issued by the presiding judge does compel the release of records or testimony as specified in that order . . . ” (Bennett, Bricklin, Harris, Knapp, VandeCreek, & Younggren, 2006, Assessing and Managing Risk in Psychological Practice: An Individualized Approach. Rockville, MD, APA Insurance Trust, p. 111.) [ emphasis added ]
American Psychological Association Committee on Legal Issues. (2006) “Strategies for Private Practitioners Coping With Subpoenas or Compelled Testimony for Client Records or Test Data. Professional Psychology: Research and Practice, 37 (2), 215-222.
American Psychological Association Practice Organization, Legal and Regulatory Affairs Staff. (2008, December). How to deal with a subpoena. Washington, DC: Author. Retrieved from http://www.apapracticecentral.org/update/2008/12-17/subpoena.aspx
Baturin, R.L., Knapp, S.J., & Tepper, A.M. (2003, August). Practical considerations when responding to subpoenas and court orders. Pennsylvania Psychologist.
Bennett, B.E., Bricklin, P.M., Harris, E., Knapp, S. VandeCreek, L., & Younggren, J.N. (2006) Assessing and Managing Risk in Psychological Practice: An Individualized Approach . Rockville, MD, American Psychological Association Insurance Trust.
Coughter, E. P. & Tweel, R. R. (2002) Family Law. U. Richmond Law Review 37, 155-198. (Discussing provisions of the now-repealed privilege statute, § 20-124.3:1.)
Fisher, M.A. (2012). Confidentiality and Record Keeping. Chapter 13 in S. Knapp, M. Gottlieb, M. Handelsman, & L. VandeCreek (Eds.) APA Ethics Handbook for Psychologists (pp. 333-375). Washington DC: American Psychological Association. DOI: 10.1037/13271-013.
Fisher, M.A. (2013). The Ethics of Conditional Confidentiality: A Practice Model for Mental Health Professionals. New York, Oxford University Press. ISBN13: 9780199752201
Glosoff, H.L., Herlihy, S.B., Herlihy, B. & Spence, E.B. (1997) Privileged Communication in the Psychologist-Client Relationship. Professional Psychology: Research and Practice, 28, 573-581.
HIPAA — 45 C.F.R. § 164.512( e) : “Uses and disclosures for which an authorization or opportunity to agree or object is not required. Retrieved from https://www.law.cornell.edu/cfr/text/45/164.512
Koocher, G.P. & Keith-Spiegel, P. (2008). Ethics in Psychology and the Mental Health Professions: Standards and Cases, Third Edition. New York, Oxford University Press
U.S. Department of Health & Human Services.(2009).Court Orders and Subpoenas [Under HIPAA]. Retrieved from http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/courtorders.html
Note 1. In fact, 13 states model their therapist- patient privilege statute after their attorney-client privilege statute. See discussion and text of those state statutes.
Note 2. For a sample “motion to quash” and examples of other arguments that can be included when filing such a motion, click here.