I am a Licensed Clinical Social Worker in Illinois, and I am writing this for fellow therapists who may find themselves needing some basic information on how to respond to subpoenas from lawyers for clinical records. I recently was forced to hire a lawyer to give me this very basic information, as I was unable to find it online.
I will try to provide a simple set of guidelines that are easy to follow. This information comes directly from advisement given to me in May, 2008 from an IL attorney who is an expert in this area. However, I have to state that I myself am not an attorney, and I do not take any responsibility for the accuracy of this information, nor the outcome of any specific legal situation. This is simply a report of what was recently explained to me, and should not be used as a replacement for legal advice from an attorney.
The following is what I was recently told:
"IF YOUR RECORDS ARE REQUESTED/SUPOENAED BY A LAWYER:
1. First step is to ask your client if you have his/her permission to release the records. If they agree, have them sign a HIPPA-compliant release form (further information on this can easily be found online). With your client's written permission, you are permitted to release records. Just be sure to do a little research as to HIPPA compliance for the form.
2. If your client does not give permission, or if you are unable to contact the client, send a letter to the attorney who is requesting the information that says you will not release records without either a HIPPA-compliant release signed by the client, or a specific court order signed by a judge. Don't say anything more.
3. Attorneys may provide what is called a "Qualified Protective Order," which will mention HIPPA regulations, and will state that the private information will only be used for the purposes of legal proceedings, etc. THIS IS NOT ADEQUATE for releasing mental health information, if you do not have your client's permission to do so. Again, if you receive a document like this , the first step is to contact your client or former client, let them know what you have received, and ask if you have their permission to release the records. If you do not have the client's permission, send a letter to the attorney requesting the records that says:
"Pursuant to 740 ILCS 110/10 (d), I cannot release mental health records without permission from the client or a specific court order. A HIPPA qualified protective order is not sufficient for release of mental health records. I will be happy to release the records if you provide a specific court order signed by a judge."
A few other points:
--A subpoena is NOT a court order; it is just a request for information and does not in itself obligate you to provide records. However, you do need to respond in some way to the subpoena.
--If you do not provide subpoenaed records, attorneys may threaten to ask the court to hold you in contempt. While this is to be taken seriously, it is standard for attorneys to say this in order to force compliance with a subpoena. While you do need to respond, it is also helpful to understand that being held in contempt of court in a civil case is only meant to force you to comply with court proceedings, and is not a punishment. Therefore, if you comply or provide a good reason why you are not complying, you should not have to worry about negative consequences.
--Don't let any situation get personal. Stay calm, say little, and stick to the facts. Do your communicating in writing, not over the phone.
I hope this information is helpful! I welcome your feedback.
Monday, May 19, 2008
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