obligations may favor disclosure, including, in particular,
the general obligation of all citizens to give truthful and
complete testimony when required to do so. But there are often
conflicting duties and principles that favor withholding such
information. These may include obligations to:
• Clients or other individuals who receive treatment and/or
are given psychological tests.
• The public (to avoid public dissemination of test items,
questions, protocols or other test information that could
adversely affect the integrity and continued validity of tests).
• Test publishers, including contractual obligations between
the psychologist and test publishers not to disclose test
information and obligations under the copyright laws.
• Other third parties, such as employers.
A special type of third-party obligation may arise in forensic
contexts if, for example, a psychologist performed work with
a litigant for an attorney. In such cases, the key concern is
whether records from that work with the litigant is protected
from disclosure under the attorney work product privilege.
Strategies for dealing with
subpoenas
Psychologists, in consultation with an attorney if needed,
should consider six strategies when issued a subpoena:
Determine whether the request for information
carries the force of law
The psychologist must establish whether he or she has
received a legally valid demand for disclosing test data and
client records. For example, to be valid, a subpoena should
generally allow sufficient time to respond to the demand for
materials and provide for some time for the opposing side
to quash such a demand if appropriate. If a demand is not
legally enforceable for any reason, then the psychologist has
no legal obligation to comply with it and may have no legal
obligation to respond.
Even a demand that claims to be legally enforceable may
not be. For example, the court issuing the subpoena may not
have jurisdiction over the psychologist or his or her records: A
subpoena issued in one state, for example, may not be legally
binding on a psychologist who lives and works in another state.
Or, the subpoena may not have been properly served to the
psychologist — some states may require service in person or by
certified mail. A psychologist should consult with an attorney in
making such a determination.
If the psychologist concludes that the demand is legally valid,
then a formal response to the attorney or court is required,
whether it is compliance with or opposition to the demand, in
whole or in part. A psychologist’s obligation to respond to the
subpoena is not necessarily the same as those under a court
order (see below under “File a motion to quash the subpoena or
file a protective order”).
Contact the client
Clients may have a legally protected interest in preserving
the confidentiality of their records. So, if a psychologist
receives a subpoena or notice requiring that he or she divulge
a client’s records or test data, the psychologist may discuss the
implications of the demand with the client (or his or her legal
guardian). The psychologist may also consult with the client’s
attorney when appropriate and with the client’s valid consent.
When talking with the client, the psychologist should explain
which information has been demanded, the purpose of the
demand, the entities or individuals to whom the information
is to be provided, and the possible scope of further disclosure
by those entities or individuals. After that discussion, a legally
competent client or the client’s legal guardian may consent
to allow the psychologist to produce the data. Generally, such
consent is required to be in writing, which helps to avoid future
conflicts or legal entanglements with the client over the release
of confidential tests or other records. The client’s consent may
not, however, resolve the potential confidentiality claims of
third parties (such as test publishers).
The psychologist may want to emphasize to the client that
when he or she agrees to release information requested, he
or she cannot specify or limit which information is released.
Rather, the entire record — including psychotherapy notes,
billing records, administrative notes and more — will be
available. The scope of the release may be the subject of
negotiation among attorneys, however, so if the psychologist
believes that a release would harm the client, he or she should
voice his or her concerns and object to the release on that basis.
Negotiate with the requester
If a client does not consent to release the requested
information, the psychologist — often through counsel —
may seek to prevent disclosure through discussions with legal
counsel for the requesting party. The psychologist’s position in
such discussions may be bolstered by legal arguments against
disclosure, including the psychologist’s duties under evidence
rules regarding psychotherapist–patient privilege. These rules
often allow the psychologist to assert privilege on behalf of the
client in the absence of a specific release or court order. (Some
possible arguments are outlined in the section below, “Consider
possible grounds for opposing or limiting production of client
records or test data.”) Such negotiations may explore whether
there are ways to achieve the requesting party’s objectives
without divulging confidential information, perhaps by
disclosing nonconfidential materials instead. Psychologists may
also be able to negotiate to avoid compelled testimony.
File a motion to quash the subpoena or file a
protective order
If negotiation is not successful, it may be necessary to file a
motion for relief from the obligations imposed by the demand
for confidential records.
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