The Custody Subpoena and the Board Complaint
Dr. Angela Kim has treated 10-year-old Noah for anxiety for eight months. Noah's parents are divorcing. Father's attorney serves Dr. Kim with a subpoena for Noah's entire record and a deposition. Mother files a Board complaint alleging Dr. Kim “took father's side” and violated confidentiality after Dr. Kim sent father a brief appointment reminder. Father's new partner calls the office and asks for “a note for school saying Noah is fine with us.” Noah's mother has legal custody; father has joint legal custody but not physical custody. The subpoena was not accompanied by a court order or either parent's authorization. Dr. Kim's records contain Noah's statements about both parents and a note that father once yelled at Noah during a session.
1. How should Dr. Kim respond to the subpoena and the request from father's partner?
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Subpoena. A subpoena is not the same as a court order. Dr. Kim should not release the entire record merely because an attorney asks. She should notify both parents' attorneys, assert the child's privilege on Noah's behalf, and ask the court for guidance or a protective order. Because mother has legal custody and father has joint legal custody, consent is complicated; the safest course is a court order or appointment of a guardian ad litem. She should provide only what the court orders, after reviewing for privileged or irrelevant material. She should prepare for the deposition with counsel and testify only about treatment, not custody opinions outside her role.
Father's partner. The partner has no legal authority to consent to release or to request a school note. Dr. Kim should decline, explain that she cannot confirm or discuss Noah's care with her, and document the call. Any school note should be authorized by the legal custodian and limited to treatment-related information.
2. How should Dr. Kim respond to the Board complaint?
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She should respond in writing within the Board's deadline, in a factual and non-defensive tone. She should explain the appointment reminder was a routine administrative contact, describe her confidentiality practices, and provide the relevant consent and custody documents without releasing privileged material beyond what the Board requires. She should not alter the record, add late entries without labeling them, or discuss the complaint with the parents. She should cooperate with the investigation, keep copies of everything, and consult an administrative or malpractice attorney. She should not assume the complaint is frivolous, but she also should not over-disclose to the Board. If the Board requests records, she should provide only what is authorized and document the release.
3. What confidentiality and custody issues must she manage going forward?
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She should clarify in writing who may consent to treatment and records under the custody order. She should obtain a copy of the order and keep it in the file. She should avoid becoming an evaluator for either parent or offering custody recommendations. She should maintain neutral, behavior-based notes and avoid labeling either parent. She should not communicate with one parent about the other parent's legal position. If the parents cannot agree on treatment, she should seek court clarification or a guardian ad litem. She should continue to protect Noah's therapeutic relationship, explain confidentiality limits in age-appropriate terms, and document all requests and responses. If the Board or court requires release, she should release the minimum necessary and note it in the chart.