The Subpoena, the Custody Case, and the Attorney on the Phone
Dr. Nadia Warren has treated Ms. Kowalski for two years for major depression and for distress related to a contested divorce. Ms. Kowalski's husband has petitioned for sole custody of their two children, ages 7 and 10. Dr. Warren now receives a subpoena duces tecum, issued by the clerk of the circuit court at the husband's attorney's request, demanding 'the entire chart, including psychotherapy notes, raw test data, billing records, and all emails and text messages,' with no authorization from Ms. Kowalski. The return date is 14 days away. Ms. Kowalski leaves a voicemail: 'Do not give him anything.' The husband's attorney then calls Dr. Warren and offers to 'put her on the stand as the court's expert on Mom's parenting' if she cooperates, and mentions that 'it would be a shame if the Board had to hear about how resistant you're being.'
1. What are Dr. Warren's obligations in response to the subpoena, and what should she do in the next 14 days?
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A subpoena is not a court order, and it does not override privilege. Dr. Warren's obligations run in two directions: she must respond to the subpoena, because ignoring a court command risks contempt, but she must not produce privileged material without authority.
The privilege belongs to Ms. Kowalski and is asserted by Dr. Warren on her behalf under the Mental Health and Developmental Disabilities Confidentiality Act. Steps: (1) Produce nothing on day one; 14 days is time to act, not a deadline to comply blind. (2) Notify Ms. Kowalski in writing of the subpoena and her voicemail, and tell her she needs counsel. (3) Notify the husband's attorney in writing that the material is privileged, that the client objects, and that she will comply only with a valid authorization or an order entered after the court reviews the records. (4) Prepare or support a motion to quash or for a protective order and offer in camera review. (5) If an order issues, produce only what it requires. Psychotherapy notes, raw test data, and billing records must be addressed separately; test data goes to a qualified professional, not into an attorney's file.
2. Should Dr. Warren accept the attorney's proposal to serve as the court's expert on the mother's parenting?
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No. The treating therapist and the custody evaluator are incompatible roles. An evaluator is retained to be impartial, to gather collateral information, to use a forensic method, and to answer a specific psycholegal question. Dr. Warren has a two-year therapeutic relationship, has only her patient's account, and is being invited to opine on 'Mom's parenting' by the opposing party, which would make her a partisan instrument rather than a neutral one. Ethics standards on multiple relationships and forensic roles, and Illinois practice expectations, point the same way.
The correct response is a clear written declination. She can explain that a treating clinician does not serve as a custody evaluator for her own patient, and that if the court needs an evaluation it should appoint a qualified evaluator with no treating relationship to either parent. She can offer to continue treatment and, if properly authorized, to provide a factual treatment summary limited to what she observed. She should not accept the role even if the court asks, without first consulting an attorney and considering whether withdrawal from treatment is feasible.
3. How should Dr. Warren handle the attorney's threat and the offer embedded in it?
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Treat the call as an attempt to influence a witness and a threat, and respond in writing only. Do not argue, do not agree to anything, and do not produce records to make the threat go away. Send a brief letter to the attorney, copying the client's counsel, stating that the records are privileged, that the client objects, that she will comply with a valid authorization or court order, and that she will not discuss the case ex parte. Document the date, time, and content of the call, including the remark about the Board and the offer of an expert role, and preserve the voicemail.
Then protect herself: notify her malpractice carrier, consult a health-care attorney about the motion to quash, and consider whether the contact should be brought to the attention of the judge presiding over the custody case. A board complaint is not a reason to breach confidentiality; it is a reason to make sure every step she takes is documented and legally advised. She should also review with counsel whether her responses to any prior requests for information were consistent with the Act.