Recordkeeping and Subpoena: Responding to a Court Order
Dr. E, a psychologist in Juneau, receives a subpoena duces tecum for the complete psychotherapy records of a former client, Ms. F. The subpoena is from the opposing attorney in a child custody case. Ms. F has not authorized the release of her records. Dr. E believes that releasing the records could harm Ms. F, who has a history of trauma. The subpoena was served by mail and does not include a court order signed by a judge. Dr. E is unsure whether to comply, object, or notify Ms. F. The records include sensitive information about Ms. F's sexual history and previous suicidal ideation.
1. What steps should Dr. E take in response to the subpoena?
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Dr. E should not immediately release the records. Under Alaska law and APA Ethics Standard 4.05, psychologists may disclose confidential information when required by law or court order. However, a subpoena is not a court order; it is a request for documents. Dr. E should: (1) verify the validity of the subpoena; (2) notify Ms. F (if possible) so she can seek to quash or limit the subpoena; (3) assert privilege on behalf of Ms. F unless she waives it; (4) seek a court order or client consent before releasing. If Dr. E receives a court order signed by a judge, she must comply, but may still request that the court review the records in camera to limit disclosure. Dr. E should document all actions and consult with an attorney. The Alaska Board of Psychology expects psychologists to protect client confidentiality and to release only the minimum necessary information.
2. How should Dr. E handle the sensitive information in the records?
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Dr. E should assert privilege and seek to limit disclosure to only what is relevant to the custody case. The records contain sensitive information about sexual history and suicidal ideation that may not be pertinent to the custody dispute. Dr. E can request that the court conduct an in-camera review to determine what portions, if any, are relevant. Dr. E should also consider providing a summary or a letter rather than the full record, if allowed. The APA Ethics Code (Standard 4.04) requires that psychologists include only information relevant to the purpose in reports or disclosures. Dr. E must avoid unnecessary disclosure that could harm Ms. F. If ordered to release the full record, Dr. E should comply but may seek a protective order to limit further dissemination. Consultation with a attorney is advisable.