The Records Request
A therapist has been treating a 41-year-old woman for 18 months for PTSD related to childhood sexual abuse. The client's attorney in a civil suit against her former employer subpoenas 'all records, including psychotherapy notes,' and the client has signed a broad release. The therapist's notes contain detailed abuse narratives, a passing reference to the client's extramarital affair, and the therapist's speculation about the client's relationship with her mother. The client calls and says, 'Just send everything - I have nothing to hide.' The therapist is also asked by the client's sister, who is paying for treatment, to confirm whether the client is 'really attending.'
1. How should the therapist respond to the subpoena and the client's broad release?
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The therapist should not send everything simply because the client consented. Key considerations:
- Psychotherapy notes are treated differently from the rest of the record under HIPAA; they generally require a separate, specific authorization and are not subject to the same routine release. The therapist should consult the applicable rules and, ideally, legal counsel.
- Relevance and scope - the subpoena may be broader than what is legally required. The therapist can seek a protective order or negotiate a narrowed production, and should notify the client of the subpoena and the opportunity to object (per the jurisdiction's rules).
- Third-party information - the affair and the sister's payment do not belong in a response to a subpoena about employment; redact what is not responsive. Speculation about the mother is the therapist's opinion, not fact.
- The client's 'send everything' - a broad release is not necessarily informed consent to disclosure of highly sensitive material; the therapist should have a documented conversation about foreseeable consequences (the notes will be read by opposing counsel, may be used in cross-examination, and cannot be un-disclosed).
Document the request, the consultation, the client discussion, and the narrowed production.
2. How should the therapist handle the sister's request to confirm attendance?
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Do not confirm or deny. The sister is a third party paying for treatment; payment does not create a right to clinical information. Confirm only what the client has authorized in writing, and even then, limit to the minimum necessary. The therapist should tell the sister, neutrally, that they cannot discuss the client's care, and should discuss with the client whether she wants any administrative confirmation (e.g., for billing) and document that choice. This is a confidentiality issue (Domain 9) and a boundary issue (Domain 4): financial involvement does not equal consent to disclosure.