Subpoenas for Clinical Records and Clinical Notes

In some states, attorneys have the legal authority to issue subpoenas to which you must comply. Texas is one of the states. This includes a subpoena duces tecum, whereby you have to bring the client’ s records with you. Assuming this is true in your jurisdiction, you must appear in court at the time and date specified in the subpoena, even though one or more of the parties have breached their contractual obligation to pay your fees or are no longer under your care at the time the subpoena is issued. Furthermore, assuming you have consent from the parties who hired you to disclose their confidential or privileged information, you must give testimony and produce subpoenaed records. Clinical records must be maintained on every client. The therapist must take affirmative action to protect a file. Computer records are also subject to subpoena. If a licensing board issues a state license, the board usually publishes guidelines that set out the minimum standards necessary for clinical records and notes. A therapist can maintain only one set of records. Private records, including notations, are usually subject to subpoena. Court testimony indicating that the therapist had two sets of records, one for the client and the other for the therapist, can be embarrassing. HIPAA’s Privacy Rule provides that psychotherapy notes (i.e., a therapist’s notes on what was said by the client and therapist during a session) can be disclosed only with client authorization. If you are concerned about whether these records are protected, ask the court to order your testimony. The court ordered release of records is an exception to HIPAA rules. Because the therapist records, protects, and maintains the file, keep in mind that every note contained in the file should be written with the possibility of disclosure in court, under oath, with the judge, lawyers, parties, possibly members of the public, and the court reporter present. Clinical notes can never be fully protected, even when the may contain information detrimental to the client. Both clients and therapist must know the limits to confidentiality imposed under the law.