The Records Request After Termination
Priya, an LMT, terminated therapy with a client, Tom, eight months ago after 22 sessions. Tom now sends a written request for his 'complete file,' including Priya's private process notes and her consultation notes with a colleague about her countertransference. Tom's new attorney has also sent a subpoena for the records without a court order or Tom's authorization attached, returnable in 10 days. Priya's file contains intake forms, progress notes, a diagnosis, billing records, and separate psychotherapy notes. Tom has an unpaid balance of $640. Priya is inclined to withhold everything until the balance is paid and to release the whole file to the attorney because 'a subpoena is a court order.'
1. Evaluate Priya's two stated positions: withholding for nonpayment and treating the subpoena as a court order.
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Withholding for nonpayment - wrong. Records belong to the client (or are the client's to access); an unpaid balance is a business matter. Withholding records to collect a debt risks abandonment and a board complaint. Priya may pursue the balance separately.
Subpoena = court order - wrong. A subpoena is a demand, not a judicial determination that the records are discoverable. Responding by dumping the entire file can waive privileges and violate confidentiality. The correct step is to assert privilege, notify the client (or confirm his attorney already knows), seek a protective order or the client's authorization, and release only what is ordered or authorized.
Exam point: Both instincts feel administrative but are clinically and legally hazardous. The balance and the subpoena are separate tracks.
2. How should Priya respond to Tom's request for his complete file, including process notes?
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What to release: Tom is entitled to his record - intake, progress notes, diagnosis, and billing. Those are the client's record.
Psychotherapy/process notes: Priya's private process notes and her consultation notes about her own countertransference are generally treated differently from the formal record. She should:
- Provide the formal record promptly.
- Explain in writing which materials she is withholding and why (they are the therapist's private notes, not the client record).
- Offer a summary of the treatment and a conversation about the withheld material.
- If Tom disputes access, follow the jurisdiction's process rather than unilaterally deciding.
Never release the colleague's consultation notes without addressing the colleague's confidentiality and the limited purpose of those notes. A short written explanation with the record is better than silence, which invites a complaint.
3. What should Priya do about the subpoena in the 10-day window?
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Steps:
- Do not release records yet.
- Contact Tom (or his attorney) to confirm whether he authorizes release; his attorney's subpoena may reflect authorization, but verify.
- If no authorization, assert privilege and seek a protective order or guidance from the court.
- Release only the specific records ordered, redacting unrelated third-party information.
- Document every step and date.
Deadline management: The 10-day return date is a response deadline, not a license to disclose. A timely objection or motion preserves the privilege. Silence and production waive it.
Exam point: The safe response to a subpoena is a documented, timely objection - not compliance and not defiance.