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Should You Respond to that Subpoena?
Please note that the following article reflects the law in Illinois. While other states may have similar laws, each state has adopted their own mental health and confidentiality act. For more information on your state law regarding mental health and confidentiality act, please consult an attorney from that state.
No matter the type of clinical practice a mental health care professional enjoys, the odds are almost certain that one of your clients will be involved in litigation. Frequently, during the course of discovery in a legal proceeding, a patient’s mental health becomes an issue. Most often, the attorneys involved in that case will serve a subpoena on a mental health professional to produce his or her records, give a deposition or come to trial and testify. Should you respond to that subpoena and turn over your records or give a deposition? The answer is usually NO.
Many times mental health professionals will respond to general subpoenas since they appear to be court orders, which must be followed, or risk a contempt of court citation. However, although subpoenas for records, deposition or trial testimony are “court orders” or “writs of court” which should be complied with; when these subpoenas are issued for mental health records, the Illinois Mental Health and Developmental Disabilities Confidentiality Act takes precedence. Under Section 10 (d) of the Act:
No party to any proceeding...shall serve a subpoena seeking to obtain access to records or communications under this act unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or issuance of the subpoena. No person shall comply with a subpoena for records...unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or disclosure of the records.
Accordingly, unless that subpoena is accompanied by a separate written order issued by a judge specifically authorizing the issuance of the subpoena, DO NOT RESPOND to the subpoena.
In Renzi v. Morrison, the First District Appellate Court held that a therapist who voluntarily disclosed a psychiatric patient’s confidential communications, as a witness for the patient’s spouse in a divorce proceeding, could be held liable for damages. In that case, the therapist appeared at the trial, and the patient objected to him testifying about her psychiatric evaluation or communications. The judge overruled the objection and stated, “I’m going to let the therapist testify.” The appellate court held that even though the judge allowed the therapist to testify, the therapist could still be held liable for damages since the therapist appeared at the trial voluntarily and not pursuant to a properly issued subpoena.
In Mandziara v. Canulli, decided September, 1998, the First District Appellate Court held that an attorney violated the Mental Health Confidentiality Act by serving a subpoena for records without first obtaining a court order, even though the subpoena called for the records to be produced to the trial judge for an in camera review. In this case, the records keeper for a community hospital came to court in response to a subpoena and handed the records directly to the trial judge for his review. The judge asked the records keeper some questions and then directed his questions to the patient. The court found the attorney violated the Confidentiality Act by serving a subpoena on the hospital without a court order.
We are currently involved in a case where a mental health professional received a subpoena to testify in court. This therapist consulted with his attorney who advised to respond to the subpoena. The mental health professional testified in court. The IDPR found out about this and brought an action against the therapist for breaching the Confidentiality Act. The subpoena was issued in violation of Section 10 (d) of the Act.
The real problem and concern for therapists on this issue is that most attorneys and judges do not understand nor fully appreciate the Confidentiality Act. Attorneys rarely comply with the provisions of Section 10 (d) of the Act and judges allow therapists to testify in violation of the Act. Moreover, attorneys sometimes threaten therapists if they refuse to respond to a subpoena. Generally, attorneys simply issue a regular subpoena to all physicians. These regular subpoenas do not contain a separate court order authorizing issuance of the subpoena or disclosure of the records. Therefore, although physicians can respond to this subpoena, therapists are prohibited from complying with this regular subpoena.
The confidentiality of mental health records is of paramount importance to the patient. Nothing in the Act excuses the requirement that a court order be obtained before subpoenas are to be issued. Do not respond to any subpoena unless it is accompanied by a separate, specific court order.
Reprinted with permission from Scott D. Hammer (SHammer@FBFK.com) of Fraterrigo, Beranek, Feiereisel & Kasbohm, 55 West Monroe, Suite 3400, Chicago, Illinois 60603, (312) 782-9255.
RESPONDING WHEN YOU’RE SUED
Besides being subpoenaed to turn over your records or give a deposition, a number of mental health or human development professionals are faced with lawsuits. The suits can come from virtually anyone—clients, colleagues, supervisors or other health care professionals—for anything from alleged theft to abusive behavior, substance abuse, insubordination or negligence. At times, the charges can have little merit and are investigated and dismissed; others can result in disciplinary action and, in some cases, either license/certificate suspension or revocation along with a large payout. The effects can be devastating—professionally, financially and emotionally.
A complaint should never be taken lightly. Even when you are certain that you have done nothing wrong, never attempt to face the charges alone. The most important thing to do is notify HPSO immediately. Remember, your HPSO professional liability insurance policy is there to help you during this difficult time. Once you’ve reported the suit to HPSO, we will manage your claim based on the facts of the case. In some cases, you may receive a non-threatening letter from the patient’s attorney or any state or federal administrative agency, licensing or regulatory authority requesting a meeting, possibly leaving the impression that the investigation will be fully resolved at that time. Or the initial contact may be more intimidating, making it seem imperative that you meet with investigators at once. Either way, do not agree to attend unless your appointed attorney advises you to do so—and prepares you to face the questions and probing.
What’s more, you should not sign an Administrative Complaint or a Consent Order and Stipulation, should you be asked to do so. Your signature on such a document can be considered an admission of wrongdoing and not only could damage the defense of the case, but it could have long-term negative effects to your profession. The bottom line: Charges against you are far too serious to face on your own.