Subpoenas

[Clinpsych8715]

Hi All,

I was wondering if you all could provide me with some guidance or better understanding of my recent experience with subpoenas. A little background. I work with child victims of crime. None of my clients are required to be in therapy. All services are voluntary, and no client has been mandated by the court to be there. Nevertheless, my records get subpoenaed all the time. There was a point when I was getting multiple subpoenas a week. Usually lawyers want to know if I can verify that the child has in fact been the victim of a crime (which obviously I can't since I'm not a detective or anything of the sorts), or if I have any information that would help with a custody battle (I'm not a custody evaluator, so no. Sometimes I can give information regarding my clinical impression of who the child feels safe with or if there are any major disputes, but I'm usually asked quite bluntly which parent I think should have custody). Usually I fight the subpoenas, but lose sometimes because a judge signs a court order for records and/or testifying. My question is, what gives? If communication between therapist and client is privileged information, how can the records so often be ordered to be released? Are therapists lawyers play things? What about Jaffe v Redmond? I quite literally don't understand how my records can constantly be ordered to be released. Especially when the focus is to determine if the child is a victim of a crime or lied during his/her interviews. Anyone out there have any take on this?

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[CheetahGirl]

I don't know about routine practice for forensic cases, but when I was training with cases of child abuse, we used to keep the 'public' hospital files, and our 'private' session notes. My supervisor would only submit the public files for subpoenas when asked. The public notes were very cut & dry, meaning information that any medical/support staff would have but the intimacy of the sessions were not expressed in those notes (only in the private session notes).

Seems like you're being railroaded into handing over more information than they are privy to under the guise of the supoena, but I don't know how else you could handle it.

I'd be interested to read what others have to say.

 

[PsyDr]

1). There's a seminal article entitled something like "treating vs forensic roles". You should search for this and read it.

2) you're doing the right thing by fighting the subpoena and waiting for a court order. 99% of the time, I ask the attorney to get a court order. Ends up easy, and protects against any board actions.

3) where you are screwing up is testifying as an expert. When they subpoena you, call you, etc and you have already established a treating relationship; you can only testify as a fact witness. This means you can only read your notes. The difference between expert and fact is that an expert can offer opinions. Your state also has evidentiary rules about how these opinions can formed. They cannot be based upon intuition or experience. So when testifying before as a fact witness you just read your notes or say, "that is not in my notes.".

Here's what I do when people send me forensic cases and then call:

Asked to testify:

" counselor, I've sent you my records. I want you to know that if called to testify I will be the worst goddamn fact witness you have ever seen. The ONLY thing I will do is read my notes."

"Counselor, you just asked me an opinion which you are aware is the task of an expert witness. You have not offered to pay me for such services. I'm sure you are aware of the bar rule in this state that indicates that theft of services is a disbarrable offense".

"Counselor, you asked me to see this patient to see for treatment and asked me to bill their insurance. I'm sure you are aware that billing insurance for forensic purposes is a federal crime, which would implicate you in a federal crime. Is that correct?"

You have to keep in mind that these guys KNOW they should hire an expert witness which would cost them around 40k. They are familiar with all this. They just want to save money. Money that should be yours. Get angry.

 

[WisNeuro]

What PsyDR said, #3 was what stood out to me the most. Definitely read up on fact vs expert witness testimony and look up the pertinent laws in your own state. Honestly, it may be worth scheduling an hour or two with a forensic expert in your area to go over your duty and obligations in such cases. Even if you have to pay a consultation fee for it, it may end up saving you loads of time and money in the future.

 

[Clinpsych8715]

Wow, thanks everyone! I wasn't expecting to wake up on a Sunday to such thorough responses, so thanks again. With regards to the fact versus expert, I should probably clarify that when I respond to subpoenas regarding this it's always because the client and their legal guardian want me to and the response is based off of what they have actually said in sessions. I only talk about safety if the client wants me to and has said that they don't feel safe with either parent. I don't think I made that clear in my first post. But, excellent point, and definitely something to be aware of.

My main frustration with the system involves getting a court order for the entire record so that the defense attorney can "pick it apart," and say the crime (which is most often abuse) never happened. My notes are short, and clearly, I don't question the validity of the allegations with my clients. That's not my role. I think I am still confused as to how a judge can order these records to be released. I'm not sure if anyone has that answer. I appreciate all of your responses and support. I think I will seek out a forensic expert. Thanks again.

 

[PsyDr]

When you say they start "picking it apart", I would offer that this is because you are offering an opinion and sliding into an expert role. It is designed to do this because they do not want to pay for services. DO NOT TESTIFY ABOUT ANYTHING OTHER THAN THE VERBATIM WORDS IN YOUR NOTES. They ask if you thought XYZ? Not in your notes. Ask if B indicates Y? Not in your notes. If research indicates H? Not in your notes. They will absolutely get frustrated by this behavior. This is because they are trying to get free services (i.e., expert opinions) for free. Do not get cowed by their anger.

Atty: "Dr. X, you said in your report the child was wearing a shirt. Isn't it true that kids with shirts are always victims of XYZ crime?"

You: "There is nothing in my records about this. I have been called as a fact witness. You are asking opinions, which is the job of an expert witness. You have offered me zero dollars for expert witness services, which can only lead me to believe you are trying to gain my services by deception. I am sure the state bar would be interested in this behavior."

Atty: "there's a spelling error on page 3, line 54"
You: "There's nothing in my notes about that."

Atty: "Dr X, isn't it true that blah. Yes or no"
You: "Again counselor, I am a fact witness. There is nothing in my notes about that subject."


I would and have spent an extraordinary amount of time on the stand pretending to look through notes. They waste my time, I'll waste theirs.

You (thumbing through records)
Atty: It's page 4, Dr.
You: I would like to ensure what I am saying is the truth. As you are aware, misleading the trier of fact is an actionable offense from your state bar. Would you like me to make sure I am answering in an truthful manner or would you like me to just read what you want? (back to thumbing through records for a minimum of 2 minutes).

 

[temppsych123]

I am not in any kind of setting that would prompt frequent subpoenas, but I think this thread is fascinating and this information is super useful should I ever end up in this kind of situation. I have many lawyers in my family and went to a great training program and yet never have heard these issues addressed in such a thoughtful way. Yay SDN!

 

[Therapist4Chnge]

It's important to have your own counsel if you have any doubts. i get stuff like this every few wks, and every once in awhile I still check with our lawyers bc there can be some state-specific wrinkles that may apply.

You can make some template responses and use them consistently enough that the local firms will cut down/stop on blanket requests (write letters, fill out forms) and may or may not reduce the # of subpoenas. Sadly, some lawyers don't know the in's and out's with what they are asking.

 

[smalltownpsych]

Great information. My records are being requested all of the time too. Rarely from a subpoena and the hospital handles those requests through their own legal department and informs the attorneys of the cost to show up in court. That usually squashes it. The problem I have is that the patient is requesting their records to be sent to their attorney or school or insurance or probation officer other health agencies or you name it.

 

[Pragma]

Being a fact witness sounds like it could be kind of fun - if you enjoy pissing people off!

 

[smalltownpsych]

What about the whole hybrid witness trap? You will be asked your own expert opinion about facts that you observed. For example, "Doctor, you stated that the patient exhibited the following symptoms. Would those symptoms be consistent with what you have seen in other alleged abuse victims?" I imagine that the judge would have you answer that question. This case in Georgia indicated such as well http://www.forensisgroup.com/can-a-...ion-when-not-designated-as-an-expert-witness/

 

[PsyDr]

What about the whole hybrid witness trap? You will be asked your own expert opinion about facts that you observed. For example, "Doctor, you stated that the patient exhibited the following symptoms. Would those symptoms be consistent with what you have seen in other alleged abuse victims?" I imagine that the judge would have you answer that question. This case in Georgia indicated such as well http://www.forensisgroup.com/can-a-...ion-when-not-designated-as-an-expert-witness/

The judge can order you to do whatever he/she wants. I always comply with whatever the judge says. But you can also answer however you want.

"Again, I was called as a fact witness. Any professional opinions I have formed do not conform to Daubert/Fry criteria. If your honor orders me to answer the question, I will gladly do so. "

 

[psych.meout]

Great information. My records are being requested all of the time too. Rarely from a subpoena and the hospital handles those requests through their own legal department and informs the attorneys of the cost to show up in court. That usually squashes it. The problem I have is that the patient is requesting their records to be sent to their attorney or school or insurance or probation officer other health agencies or you name it.

As long as the patient signs and submits a proper release form, don't you have to send them the records according to HIPAA?

Or is this an issue of what records to send? I like CheetahGirl's recommendation to keep the medical notes separate from the session notes and just submit the former.

 

[smalltownpsych]

The whole super secret progress or session notes thing doesn't fly unless you are just keeping some handwritten notes for personal use. We have a template that has the minimum required info to bill, but the subjective note of what we discussed during the session including the intake which typically has the most sensitive information are all available to be sent anywhere. Some of the signed releases are under varying amounts of duress or pressure. Probation department, DFS, disability, and schools are a few examples right off the top of my head.

 

[CheetahGirl]

The whole super secret progress or session notes thing doesn't fly unless you are just keeping some handwritten notes for personal use.

It is only for personal use. Remember I was trained psychodynamically, and it was suggested to never take notes during session (as to be fully-present) unless you are quickly jotting down keypoints, but after session, you can put it all together for your future clinical reference in your private notes.

In practice, nobody has time for this, but in these circumstances, it is exactly where it could be useful.

 

[Doctor-S]

I was wondering if you all could provide me with some guidance or better understanding of my recent experience with subpoenas.

There is a difference between process notes and progress notes.

Process notes are often basic record-keeping notes (e.g., time and date of appointment).

Progress notes (i.e., psychotherapy notes for the therapist's personal use) receive special protection under HIPAA.

You might be interested in looking at the following APA materials concerning record-keeping guidelines:

http://www.apa.org/practice/guidelines/record-keeping.aspx

http://www.apapracticecentral.org/f...dex.aspx?_ga=1.165478971.548180548.1473861129

Thank you.

 

[smalltownpsych]

It is only for personal use. Remember I was trained psychodynamically, and it was suggested to never take notes during session (as to be fully-present) unless you are quickly jotting down keypoints, but after session, you can put it all together for your future clinical reference in your private notes.

In practice, nobody has time for this, but in these circumstances, it is exactly where it could be useful.

There is a difference between process notes and progress notes.

Process notes are often basic record-keeping notes (e.g., time and date of appointment).

Progress notes (i.e., psychotherapy notes for the therapist's personal use) receive special protection under HIPAA.

You might be interested in looking at the following APA materials concerning record-keeping guidelines:

http://www.apa.org/practice/guidelines/record-keeping.aspx

http://www.apapracticecentral.org/f...dex.aspx?_ga=1.165478971.548180548.1473861129

Thank you.

We (many psychologists) have had an ongoing debate at several companies where I have worked with legal consultants giving varying opinions on how to in interpret this. There is a third type of documentation that is most commonly used by us that seems to live in the grey area between these. Just think of the standard initial intake or psycho-social history on an assessment as a good example. Where does that lie and who should have access under which circumstances? It seems to me that the APA just put out a general guideline that protects them more than us and our patients.

 

[PsyDr]

The whole super secret progress or session notes thing doesn't fly unless you are just keeping some handwritten notes for personal use. We have a template that has the minimum required info to bill, but the subjective note of what we discussed during the session including the intake which typically has the most sensitive information are all available to be sent anywhere. Some of the signed releases are under varying amounts of duress or pressure. Probation department, DFS, disability, and schools are a few examples right off the top of my head.

Where I have seen some problems is when disability (especially SSDI) requests a provider to fill out a simple form asking how the patient is disabled. THIS IS ILLEGAL UNLESS THERE IS A JOB STUDY WHICH CONFORMS TO FEDERAL LAW. The attorneys who filed know that a job study is required. They just don't care because they can cut costs if no one catches them. The problem with opining about disability without a job study, is that your opinion would not meet evidentiary standards and it could easily come back on you.

 

[smalltownpsych]

Where I have seen some problems is when disability (especially SSDI) requests a provider to fill out a simple form asking how the patient is disabled. THIS IS ILLEGAL UNLESS THERE IS A JOB STUDY WHICH CONFORMS TO FEDERAL LAW. The attorneys who filed know that a job study is required. They just don't care because they can cut costs if no one catches them. The problem with opining about disability without a job study, is that your opinion would not meet evidentiary standards and it could easily come back on you.

What about a disability evaluation contracted for by the Social Security Administration that wants us to comment on person's abilities to engage in work-related activity or manage their own funds? Our department has agreed to do these and were doing them long before I got here and there are a lot of things that concern me about the whole process and don't think we get compensated well enough either, but interested in your opinion on these evals.

 

[Doctor-S]

It seems to me that the APA just put out a general guideline that protects them more than us and our patients.

Indeed, the APA posted "general guidelines" that may (or may not) be enforceable pursuant to applicable federal/state laws.

For instance, in my jurisdiction, there are several state laws that provide special protections in connection with the production and disclosure of mental health records (and these state laws may merit a preemption analysis). To be safe and protective of patient privacy, some respondents (when served with a subpoena) may choose to state, "In response to the subpoena dated ____, please be advised that I may not release patient information in the absence of a valid authorization from a patient or a court order," or something to that effect.

Note: I also understand @CheetahGirl's concerns because a psychoanalytic/psychodynamic-oriented practitioner is trained to "attend to" (and to be fully present with) the patient. Plus, they are trained to not even acknowledge that Sigmund Freud or Melanie Klein is their patient, or that anyone named Freud or Klein consulted with them in a therapeutic relationship. These are reasonable concerns; and reasonable minds might differ in courts of law. So, when in doubt, it is advisable to consult with your professional liability legal representative for further advice and counsel or to contact your own legal counsel for assistance.

Thank you.