The Subpoena in a Town of Four Thousand

A subpoena is not a court order, and it does not by itself override privilege. The privilege belongs to Ms. A., and your default position is to assert it on her behalf unless she waives it in writing or a judge orders disclosure.

Sequence of steps:

1. Verify the subpoena is valid and properly served - correct court, correct name, correct case, reasonable return date.
2. Do not release anything, including a 'brief summary.'
3. Notify Ms. A. immediately in writing, explain what the subpoena demands, that she holds the privilege, and that she may authorize release, object, or do nothing while you assert privilege. Document the conversation.
4. Consult your own attorney and malpractice carrier. Under HIPAA you may respond to a subpoena only with satisfactory assurances that the client has been notified and given time to object, or with a court order; otherwise you must seek a qualified protective order.
5. Be prepared to appear or file a motion to quash to assert privilege; ignoring the subpoena risks contempt and abandoning your client.

Local context matters: in a town this size, the husband's attorney may be your neighbor, your child's coach, or a former client. Written, formal communication rather than hallway negotiation protects both of you.

No. A summary of treatment is protected health information. Producing it outside a signed authorization, a court order, or a qualified protective order is the same disclosure as handing over the file, and the attorney's claim that 'the subpoena covers that anyway' is precisely the assumption to reject. Verbal disclosure on the phone carries the same liability as a mailed document, plus the risk of misquotation.

If disclosure ultimately is ordered, distinguish the categories in the demand:

• Psychotherapy notes receive separate, heightened protection under HIPAA and are generally not part of the designated record set.
• Test data versus test materials. You release data (scores, client responses) to the client or a properly authorized recipient, but you protect test forms and items to preserve test security, and you may need an order specifying that they go only to another qualified professional.
• Billing records are the least sensitive category and typically the easiest to produce when ordered.
• Diagnosis may be disclosed only along with the rest of the permitted record.

Practical: respond in writing, state that you are asserting privilege, and request that any disclosure be limited by a qualified protective order to the minimum necessary. Keep a copy of every communication.

Decline the opinion, offer what your role can support, and document the conversation.

Why the opinion is outside your role: you have treated one adult for depression. You have never met the children, never observed her parenting, never assessed the husband, and conducted no collateral interviews. Custody opinions require a forensic evaluation of the whole family, and a one-sided letter from a treating therapist is exactly the kind of testimony courts have grown skeptical of. It can backfire - an evaluator or opposing expert will point out that you had no data on the children and no neutrality - and it damages your therapeutic alliance if you become an advocate rather than a clinician.

What you can appropriately provide: a factual summary of treatment - dates, presenting problem, diagnosis, interventions, her response, and prognosis - and, if asked, a statement that her depression has improved and that her treatment attendance and engagement have been consistent. Keep it descriptive, avoid predictions about parenting, and state your role and its limits on the face of the letter.

Also flag: the children are not your patients and there are no records to produce for them; recommend that the court appoint a neutral custody evaluator who can examine both parents; and note for yourself the boundary issue - she may experience your refusal as abandonment, so explain it as protecting her from a challengeable opinion rather than as withdrawing support.