Records Request and Subpoena in a Custody Dispute
An LMFT has treated Elena, age 41, for 18 months for PTSD and family conflict. Elena sends a signed written request for "my complete file." The record includes progress notes, a detailed intake containing statements Elena's ex-husband made during a joint session, and several emails from Elena's attorney about the divorce. The next week, the LMFT receives a subpoena from the ex-husband's attorney in a pending custody case demanding "any and all records, including psychotherapy notes." The subpoena is issued by the clerk of the district court; it is not accompanied by a judge's order or Elena's authorization. Elena says she wants "everything" and does not want the ex-husband to see her therapy notes. The LMFT must decide what to release to Elena, what to release under the subpoena, and how to handle the third-party information and attorney emails.
1. What must the LMFT release to Elena in response to her written request, and what may be withheld or redacted under HIPAA and Nebraska law?
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Elena has a right of access to her protected health information under HIPAA, and Nebraska law also supports client access to records. The LMFT should respond within the required timeframe, generally 30 days, and may charge a reasonable, cost-based fee. The 'complete file' is not necessarily everything in the office. The designated record set includes treatment records, progress notes, intake, assessments, and billing records used to make decisions about Elena. Psychotherapy notes, if they meet the HIPAA definition of notes kept by the therapist documenting or analyzing private session content and kept separate from the medical record, are excluded from the HIPAA right of access; however, state law or a broader release may allow access, so the LMFT should verify Nebraska's rule before withholding them. The LMFT may redact information about the ex-husband if disclosure would identify him and access could cause harm, or may provide a summary where permitted. Attorney emails are part of the clinical record only if they were used for treatment or clinical decision-making; litigation correspondence may be separate. The LMFT should review the file line by line, redact only what is legally justified, and document the basis for any redaction.
2. How should the LMFT respond to the subpoena? Does a subpoena alone require production of the full record?
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No. A subpoena signed by a clerk is not, by itself, a court order authorizing disclosure of privileged therapy records. The LMFT should not release the full record simply because the subpoena demands it. The LMFT should notify Elena promptly, provide her with a copy of the subpoena, and explain that Elena may need her own attorney to object. The LMFT should assert the psychotherapist-client privilege on Elena's behalf unless Elena has waived it. The LMFT or Elena's attorney should seek a protective order, move to quash, or ask the court to review the records in camera. If the court issues a valid order, the LMFT should comply only to the extent ordered. Psychotherapy notes should not be released unless the court specifically orders it after reviewing the privilege issue. The LMFT should also redact third-party information that is not relevant to the custody case. If an appearance is required, the LMFT should appear with the records and ask the judge to rule on privilege before testifying.
3. What practical steps should the LMFT take to protect the therapeutic relationship and avoid a licensing complaint while responding?
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The LMFT should separate the client's access request from the subpoena. For Elena's request, the LMFT should acknowledge receipt in writing, clarify what will be provided and any redactions, and set a firm date. For the subpoena, the LMFT should send a written response to the attorney stating that the records are privileged, that the subpoena is not accompanied by authorization or a court order, and that the LMFT will comply with a valid order or a signed release. The LMFT should consult a health-care attorney or risk manager, especially because the custody case may become adversarial. The LMFT should document all contacts, legal advice, redactions, and disclosures. The LMFT should avoid discussing the case with the ex-husband or his attorney outside the legal process. If Elena wants to waive privilege, the LMFT should obtain a specific written authorization that identifies the records and the recipient. Throughout, the LMFT should maintain a neutral, supportive stance with Elena and explain that protecting the record is part of protecting the therapy.