The Subpoena in the Custody Case
Dr. D, a licensed psychologist, treated 9-year-old L for separation anxiety for 18 months. L's parents are divorcing. The father's attorney serves Dr. D with a subpoena demanding "any and all records, including psychotherapy notes, raw test scores, and all communications with either parent." The subpoena is signed by the attorney, not a judge. No written authorization from either parent accompanies it. Dr. D recognizes that the father may have joint legal custody, but she has not seen the custody order. She sends the complete file to the attorney within 48 hours, including a note that says "I assume this is okay because it is a subpoena." The mother learns of this and files a complaint with the Louisiana Board. Dr. D says she had no choice because a subpoena is a court order.
1. Was Dr. D's release of records proper? Distinguish a subpoena from a court order and identify the privilege issues.
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The release was not proper. A subpoena signed by an attorney is a demand for production; it is not a court order and does not by itself override the psychologist-client privilege or confidentiality. Dr. D needed a valid authorization from the person legally entitled to consent, or a court order issued after the appropriate hearing, before releasing protected information. She also had not reviewed the custody order, so she did not know whether the father could consent on L's behalf.
The demand was overbroad. Psychotherapy notes, raw test data, and communications with both parents raise distinct issues. Even where records must be produced, raw test data should ordinarily go to a qualified professional rather than the attorney, and the psychologist may seek a protective order. Dr. D's note shows she knew the basis for release was uncertain. The correct response would have been to object, seek clarification, notify the parents or their counsel, and ask the court to rule before producing anything.
2. How should Dr. D respond to the Board complaint, and what corrective steps should she take?
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Dr. D should cooperate with the Board, preserve the original records, and provide a factual timeline: the subpoena date, what she sent, to whom, and what authorization or order she relied on. She should not alter the file or add retrospective explanations. She should acknowledge the error and obtain legal counsel for the custody matter and the Board matter.
Corrective steps include notifying the parents and their counsel, requesting return or destruction of the improperly disclosed records, implementing a release procedure that distinguishes subpoenas from court orders, and requiring review of custody orders before any minor's records are released. She should also review test-data release practices. The Board may investigate whether confidentiality was breached and whether the release fell below the standard of care; remediation may mitigate but does not erase the violation.