Response to Subpoena

Looking for a sample response to a subpoena for documents?

Perhaps you’re wondering “Can a therapist refuse a subpoena?” 

You may also have questions about exceptions to privilege or what information to disclose with a signed release. 

This article provides a general overview of how therapists should handle subpoenas, plus snippets of a sample response to subpoena for documents.

During a behavioral health clinician’s career, they may receive a subpoena for therapy records—a written demand of their legal participation in a case, through providing testimony, relinquishing health records, or acting as a character witness. 

As health practitioners, we all have ethical obligations to keep protected health information confidential, however, you may not be aware of the legal exemptions and limits to counselor-client confidentiality. 

Note: This article and the sample response to subpoena for documents below is not intended to be legal advice. You should consult an attorney with any questions, as subpoenas are handled differently from case to case.

Reasons a therapist might receive a subpoena for therapy records

There are several reasons a mental health therapist or psychologist may receive a subpoena for therapy records. 

According to the American Psychological Association (APA), subpoenas may request the clinical record of a client—and any other information collected under clinical care, like client-reported data, protocols, psychotherapy notes, client forms, billing records, or manuals—to assist a judge or jury in considering all relevant information in a legal proceeding.

Some reasons a therapist may receive a subpoena for therapy records include:

Family law issues

Divorce proceedings, which may call into question the emotional state of one or both parties.

Child custody cases, where parenting or visitation is in question.

Criminal proceedings

During the discovery period of a trial, clinicians may receive a subpoena for records relating to a criminal prosecution.

Investigations

A practitioner may be the subject of a complaint investigated by the Department of Health and may wish to scrutinize records and/or administrative practices.

Another important point to consider here is the type of subpoena. Two parties can initiate a subpoena (depending on the state): attorneys and courts. 

The difference is that a court-initiated subpoena is considered a court order and may compel a disclosure of records, depending on the state of the case and the state in which the disclosure was requested. 

In contrast, an attorney-related subpoena will require an authorization to release information signed by the client. 

Can a therapist refuse a subpoena?

Therapists should treat subpoenas seriously and deal with them appropriately, however, in some instances, therapists may refuse the subpoena request. 

According to the APA, some state and federal jurisdictions allow the client to decide whether their records can be disclosed in a legal proceeding. 

While there are some exceptions (noted below), in general, the therapist has a responsibility to protect the patient's privilege. 

In other words, unless the client has signed a release of information form, or there is a valid legal exception, you should comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 

Instances where privilege is waived

There are occasions when a therapist can disclose information, or when privilege is waived, such as:

• The client expressly waived their privilege by signing a valid HIPAA-compliant release of information form
• There is a legally recognized exception to the privilege
• A court order, where a judge orders the information via a subpoena

How therapists should handle subpoenas

Note: The following information will not apply to all requests for subpoenas. Mental health clinicians should consult with an attorney for legal advice regarding subpoenas.

The APA advises the following steps to determine whether to disclose protected health information: 

Validity of request

Determine if the subpoena is legally valid by considering if the requestor is in the same state and if there has been adequate notice (at least two weeks, depending on the state).

Speak to the client 

Contact the client, provide information about the disclosure request, and ask their point of view. You can discuss the potential ramifications, speak to their attorney—if permitted—and ask for the client’s decision. If they determine to release their information, obtain a signed release of information consent form and stipulate what information will be disclosed.

Respond to the request

Should the client deny the request, the therapist may want to respond through legal representation and assert that the client’s information is protected health information, which they are legally bound to protect. Should this response be unsatisfactory to the requestor, the therapist may have to file a motion to either quash the subpoena or file a protective order. 

Consider testifying

You may be asked to testify or participate in a deposition, and they will have to determine whether they want you to refuse to answer any questions. 

Note: Grounds for opposing a request to provide evidence may include: 

• Privilege
• Jurisdiction 
• Ownership of records 
• Ethical reasons 
• Risk to test publishers 
• Harm to the public interest of releasing test information

Sample response to subpoena for documents

We have provided some key paragraphs below that can be included in a sample response to a subpoena for documents.

Note: This sample response to a subpoena for documents is not intended to be legal advice. You should consult an attorney with any questions, as subpoenas are handled differently from case to case.

Here are some key paragraphs that you may choose to include:

• Denying the request due to privilege: “Regarding the subpoena I received on [date], please be advised that all psychotherapeutic and counseling communications between a licensed [type of clinician] and a client are legally privileged communications and cannot be released without written permission by the client or a valid court order.”
• Case law supporting refusal due to privilege: “The United States Supreme Court has upheld psychotherapist-client privilege in Jaffee v. Redmond (WL 315 841 US 1996). The Court noted that all 50 states and the District of Columbia have psychologist-client privilege.”
• Conclusion: “Given the above [state] and federal laws, I cannot, and will not, release any privileged communication without a court order signed by a judge or written authorization from the person or persons holding the privilege.”

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