Subpoenas Seeking Mental Health Records: What Should and Should Not Be Produced?
By M. Jansen Voss, Partner
Mental health providers and other social services organizations are frequently presented with subpoena and non-subpoena record requests (collectively “record requests”) seeking mental health-related records. Record requests may indicate a lawyer is considering legal action against you or your organization. Having represented a number of mental health providers, non-profits, child care facilities, and social services organizations, “What records should (or should not) be produced?” is among one of the most frequently asked questions I’ve heard.
Generally speaking, confidential communications concerning a person’s mental health are protected from disclosure. Rule 503 of the Alabama Rules of Evidence, Rule 503A of the Alabama Rules of Evidence, Alabama Code § 34-26-2, and Alabama Code § 34-8A-21 all prohibit disclosure of mental health records in certain situations. There are a number of exceptions to the general rule; however, a discussion of all of the exceptions is beyond the scope of this brief article. Applying the exceptions can be a complicated and tedious endeavor. Subpoenas and record requests in federal court also require further consideration outside the scope of this article. The following relatively recent opinions from appellate courts in Alabama illustrate the tedious and complicated analysis concerning what should and should not be produced in response to a subpoena in Alabama state court:
- Ex parte Dr. Barbara Johnson arises out of a child custody matter. The mother in this case petitioned the trial court for modification of a child custody arrangement. The father issued a subpoena to a clinical psychologist seeking the mental health records of the child who was the subject of the custody arrangement. The psychologist filed a motion to quash the subpoena, but the trial court denied the motion. The psychologist then filed a Petition for Writ of Mandamus asking the Alabama Court of Civil Appeals to protect the child’s mental health records from production. The Alabama Court of Civil Appeals issued the Writ of Mandamus ruling that the child’s mental health records should be protected from disclosure. The Court pointed out 1) the child did not waive privilege; 2) a child is not a “party” to a child custody matter; and 3) the exception relating to child custody matters was intended to apply when the mental state of the person seeking custody was at issue. 219 So. 3d. 655 (Ala. Civ. App. 2016)
- On Sept. 8, 2017, the Alabama Supreme Court issued an opinion in Ex parte Altapointe Health Systems, —So. 3d.—(2017 WL 3940949). Crenshaw, a mental health group home resident, attacked another resident. Altapointe, the defendant mental health provider, filed a Petition for Writ of Mandamus seeking an order prohibiting discovery of information concerning Crenshaw’s prior aggressive acts. Altapointe argued that its knowledge of Crenshaw arose out of the psychotherapist-patient relationship, and providing information concerning Crenshaw’s prior aggressive acts would violate the psychotherapist-patient privilege. The Alabama Supreme Court disagreed, stating that Altapointe’s “argument … is based on an overbroad definition of the privilege. The psychotherapist-patient privilege is intended to protect confidential relations and communications between a patient and his or her psychotherapist.” Id. at *3 [emphasis in original]. The Court further noted: “by definition, a patient’s interactions with a third party (other than those described by the rule) are not a ‘confidential communications’ with a psychotherapist. Thus, it follows that a mental health provider’s independent knowledge of a patient’s assault on a third party cannot be considered as resulting from a confidential communication protected by the psychotherapist-patient privilege.” Id at *5.
Prior cases on the psychotherapist-patient privilege largely gloss over or ignore the fine point made in Ex parte Altapointe. The privilege extends to confidential communications. So, if a mental health provider learns something about a patient in a non-confidential setting or a non-confidential communication, that information may not be protected by the privilege. By way of example, if a mental health provider sees Patient A assault Patient B on the front lawn of the mental health group home, Ex parte Altapointe suggests that information is not protected by the privilege. However, if Patient A assaults Patient B, and the mental health provider learns about the assault only during a mental health counseling session, Ex parte Altapointe suggests that communication remains privileged.
The following are some of the issues you should consider when responding to a request for mental health records:
- Do the requested records relate to confidential relations/communications between a mental health provider and a client/patient? Were the communications made with an expectation of confidentiality?
- Is the subject of the mental health records request a Plaintiff or Defendant in the lawsuit in which the subpoena was issued?
- Does the subpoena request fit one of the exceptions to the applicable mental health privilege?
- Has the subject of the mental health records request waived privilege?
- Has the subject of the mental health records request signed an appropriate HIPAA-compliant release?
- Is there a signed HIPAA Order from the trial court? Does the HIPAA Order specifically authorize the production of confidential mental health records of the person whose records are being sought? If the HIPAA Order included with the subpoena does not specifically authorize production of mental health records, you probably should not produce the records.
Although every situation is different, even when a formal subpoena is issued for mental health records, the mental health provider should:
1) Obtain a HIPAA-compliant signed release from the patient/client specifically authorizing the release of the patient’s/client’s confidential mental health records;
2) If a HIPAA-compliant signed release from the patient/client is not an option, object to the subpoena and assert the appropriate mental health privilege;
3) In connection with the objection discussed in #2 above, request the Court quash the subpoena or enter a HIPAA compliant protective order specifically authorizing the production of mental health records.
The aforementioned list is not exhaustive. Each situation presents a unique set of facts that must be considered when determining whether mental health-related records should be produced. It is important to note that there are relatively tight deadlines for filing objections to subpoenas. You should take each subpoena seriously and respond quickly.