Subpoena, Two Parents, and a Child's Chart

No. A subpoena is an attorney's demand, not a court order, and it does not by itself overcome the psychologist-client privilege or HIPAA. Producing the chart on the subpoena alone would be a disclosure without authorization or legal compulsion.

Do not ignore it either. Ignoring a subpoena risks contempt. The correct move is a timely, documented objection.

Sequence:

• Calendar the return date immediately.
• Assert the privilege on Ava's behalf; the psychologist is the holder's protector in practice.
• Notify both attorneys in writing that records will not be produced absent a signed authorization, a court order, or a protective order.
• Check whether the subpoena includes the required notice and assurances under HIPAA; if not, that is an independent basis to object.
• Offer alternatives: a treatment summary, an agreed order narrowing the request, or in camera review by the judge.
• File or ask counsel to file a motion to quash or for a protective order if the requesting party will not narrow the demand.
• Document each communication and do not discuss the case ex parte with either attorney.

Dr. Patel is a treating clinician, not a custody evaluator; she should resist framing that invites her to opine on which parent is better.

The privilege belongs to Ava, exercised on her behalf by a parent or guardian. With joint legal custody, either parent generally may consent to treatment and ordinarily may access records; Doug's status as a parent is not erased by Colleen's fax.

But the conflict matters. When parents are adversaries in custody litigation, a unilateral waiver by one parent against the child's interest should not be honored automatically. Colleen's letter is not a court order either, and it does not by itself forbid a disclosure that a court later orders.

Reasonable course:

• Treat both parents as entitled to notice and neither as entitled to control the record unilaterally.
• Tell both attorneys, in writing, that Dr. Patel will not produce records until a court resolves the privilege question or both parents authorize release in writing.
• Ask the court to appoint a guardian ad litem for Ava or to rule on waiver; suggest in camera review.
• Avoid becoming an advocate for either parent, and avoid informal conversations that could later be characterized as taking sides.
• If Ava is mature enough, consider her preferences in a developmentally appropriate way, while recognizing that a 9-year-old cannot waive privilege alone.

Document the conflicting instructions and the decision to seek judicial guidance; that record is the best defense against a complaint from either parent.

Comply with the narrowest order, not the widest request. Read the order for scope, recipients, and deadline, and produce exactly what it compels - no more.

Limiting steps:

• Ask for in camera review before any release, so the judge sees the material before the parents do.
• Redact information about third parties and about the parents that is not relevant to Ava's functioning and treatment - including collateral disclosures that would inflame the dispute without informing the court.
• Consider producing a treatment summary or the relevant portions of the record rather than the entire chart, if the order permits.
• Keep psychotherapy-process material separate where the law allows.
• Label the production as confidential and request a protective order limiting further dissemination.
• Provide copies, retain the originals, and never alter or supplement notes in anticipation of testimony.
• At deposition, testify to observations and treatment, and decline to offer ultimate custody opinions beyond the scope of the treating role unless the court qualifies her as an expert for that purpose.

Dr. Patel should also notify her malpractice carrier and consult counsel before testifying; the cost of that consultation is trivial compared with a privilege or Board complaint.