Subpoena for SUD Records in a Custody Case
A counselor at a licensed outpatient SUD program receives a subpoena duces tecum for the complete record of Mr. T, a 37-year-old client treated for alcohol use disorder and depression. The subpoena comes from the opposing attorney in Mr. T's child-custody case. No judge's signature or court order is attached. The record includes intake assessments, progress notes, a positive urine screen, and a prior relapse. Mr. T has not signed a release. The program receives federal assistance and is subject to 42 CFR Part 2. The attorney calls and says, 'If you don't send it today, I'll hold you in contempt.' Mr. T says he does not want his treatment records used against him but is worried that refusing will look bad. The receptionist has already pulled the chart.
1. What must the program do in response to the subpoena, and what, if anything, can it release without a court order?
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A subpoena signed by an attorney is not enough under 42 CFR Part 2. The program should not release the record, and the pulled chart should be returned to secure storage. The program should notify Mr. T, consult its legal or privacy officer, and respond in writing that it will comply only with a proper authorization or a court order meeting Part 2 requirements.
Without a valid consent, the program may not disclose the treatment record. A court order must be issued by a judge and include the required findings and limits, including minimum necessary disclosure. The attorney's contempt threat does not override federal confidentiality law. The program may acknowledge that Mr. T is a client only if Part 2 permits that limited disclosure and it is necessary, but even client status is generally protected. The clinician should document the receipt of the subpoena, the steps taken, and the legal advice obtained.
2. How would you counsel Mr. T about his options and his worry about looking bad?
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I would explain that he has a legal right to confidentiality and that not consenting is not the same as hiding wrongdoing. I would describe the difference between a subpoena and a court order, what a limited release would allow, and the possible consequences of disclosure in a custody case. I would avoid giving legal advice; I would recommend that he consult his attorney.
I would support his autonomy. If he chooses to authorize disclosure, I would use a written, time-limited, specific release rather than releasing the entire chart. If he declines, the program will assert the federal confidentiality protection. I would document his decision and the information provided. His worry about appearances is real, but the clinical relationship should not be used to pressure him into disclosure.
3. What documentation and internal steps should follow after the immediate response?
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The record should be retained, not altered. Staff should document the date and time of the subpoena, the attorney contact, the client notification, the decision, and any legal consultation. The privacy officer should review the program's subpoena protocol and train front-desk staff not to pull or release charts on request.
The clinician should also review whether any child-safety duty is triggered by information in the record; if so, that must be handled under state law, not by informal disclosure to the opposing attorney. Any future release should be logged and limited to the minimum necessary. Finally, the program should debrief the client and offer support, because legal involvement can affect engagement and relapse risk.