Subpoena in a Custody Case
Denise, 41, is 10 weeks into outpatient treatment for alcohol use disorder and childhood trauma. Her intake consent authorizes release of information 'to coordinate care' but does not name her ex-husband or his attorney. On Monday the agency receives a subpoena duces tecum from the attorney representing her ex-husband in a custody dispute, requesting 'any and all records, including attendance, progress notes, and drug test results.' The same day, her probation officer calls asking whether Denise attended group last week. Denise's sister calls, worried because Denise has been 'missing,' and asks whether she is in treatment. Denise says, 'I do not want my ex to know anything; he will use it against me.' There is no court order accompanying the subpoena.
1. How should the program respond to the subpoena?
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A subpoena duces tecum is a demand, not automatic authorization. Because the program is federally assisted, 42 CFR Part 2 applies. Records may be released only with the client's specific written consent meeting the regulation's required elements or a court order meeting the applicable findings requirements. The intake consent 'to coordinate care' does not name the attorney and is not valid for this disclosure. Do not release records. Notify Denise and agency legal counsel, calendar the response deadline, and assert the confidentiality privilege. If a court orders disclosure, release only the minimum necessary and include the redisclosure prohibition. Document all actions and consultations.
2. What should you tell the probation officer?
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The probation officer is not entitled to confirmation of attendance simply because Denise is on probation, unless Denise has signed a specific, valid consent or there is a qualifying court order. A general probation condition does not override Part 2. Check the file for a release naming probation and specifying the information. If none exists, decline and explain. Offer to ask Denise whether she wants to sign a release. Do not confirm or deny treatment. Document the request, the legal basis, and the response. If the officer is seeking information for a violation, consult legal counsel before responding.
3. How do you handle the sister's call and Denise's fear?
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Do not confirm to the sister that Denise is a client. Listen, express concern, and offer general crisis-line information. If the sister reports an imminent threat to Denise or a child, follow emergency procedures and analyze mandated-reporting duties. Denise's statement that her ex will 'use it against her' is a treatment issue: explore her fears, safety planning, and what can and cannot be shared. Revisit the release form and correct any ambiguity. If domestic violence risk is present, connect her with a domestic violence advocate. Document the calls and the safety assessment.