In this section, we will examine three strategies that you might be able to use in order to protect a client’s right to confidentiality if subpoenaed by the court. These three strategies are gaining client consent, negotiation, and seeking guidance from the court.
3 Legal, Confidentiality-Protecting Strategies
Strategy #1 - Gaining Client Consent, Presented to the Supervisee
The first legal, confidentiality-protecting strategy involves gaining client consent. The client records are being requested often has a legally protected interest in preserving the confidentiality of the records. If, therefore, your supervisee receives a subpoena that may be require divulging client records or test data, your supervisee may want to discuss the implications of the demand with the client. Also when appropriate and with the client's valid consent, your supervisee may consult with the client's attorney.
Your supervisee’s discussion with the client will inform him or her which information has been demanded, the purpose of the demand, to whom the information is to be provided, and the possible scope of further disclosure. Following such a discussion, a legally competent client or the client's legal guardian may choose to consent to production of the data. It is safest to have such consent in writing, for clarity and if there is a need for documentation in the future. In some states, consent in writing may be required by law. The client's consent may not, however, resolve the potential confidentiality claims of third parties.
Strategy #2 - Negotiation, Presented to the Supervisee
The second legal, confidentiality-protecting strategy is negotiation. If a client does not give consent to release of the information, your supervisee may seek to prevent disclosure through discussions with legal counsel. Your supervisee’s position in such discussions may be supported by legal arguments against disclosure, including his or her duties under rules regarding therapist-client privilege. These rules often allow the therapist to assert privilege on behalf of the client in the absence of a specific release or court order.
Such negotiations may explore whether there are ways to achieve the requesting party's objectives without divulging confidential information, for example, through disclosure of non-confidential materials. Negotiation may also be used as a strategy to avoid compelled testimony in court or by deposition. In short, negotiation can be explored as a possible means of avoiding the wholesale release of confidential test or client information-release that may not be in the best interests of the client, the public, or the profession and that may not even be relevant to the issues before the court. Such an option could be explored in consultation with your supervisee’s attorney or the client's attorney.
Strategy #3 - Seek Guidance from the Court, Presented to the Supervisee
In addition to contacting the client and negotiation, the third strategy is seeking guidance from the court. If, despite such discussions, the requesting party still insists that confidential information or test data be produced, the safest course for you may be to seek a ruling from the court on whether disclosure is required.
The simplest way of proceeding, and perhaps the least costly, may be for you supervisee the attorney to write a letter to the court, stating that your supervisee wishes to comply with the law but is ethically obligated not to produce the confidential records or test data or to testify about them unless compelled to do so by the court or with the consent of the client.
6 Suggestions to the Court for the Supervisee
In writing such a letter, your supervisee may request that the court consider the obligations to adhere to federal requirements such as HIPAA to protect the interests of the client. This letter may help sensitize the court about the potential adverse effects of disclosure. The letter might also attempt to provide suggestions, such as the following, to the court on ways to minimize the adverse consequences of disclosure if the court is inclined to require production at all. The following six suggestions are for your supervisee to consider regarding requests to the court.
1. Suggest that the court direct you to provide test data only to another appropriately qualified psychologist designated by the court or by the party seeking such information.
2. Suggest that the court limit the use of client records or test data to prevent wide disclosure. For example, the court might order that the information be delivered to the court, be kept under seal, be used solely for the purposes of the litigation, and that all copies of the data be returned to you under seal after the litigation is terminated. The order might also provide that the requester must prevent or limit the disclosure of the information to third parties.
3. Suggest that the court limit the categories of information that must be produced. For example, client records may contain confidential information about a third party, such as a spouse, who may have independent interests in maintaining confidentiality, and such data may be of minimal or no relevance to the issues before the court. The court should limit its production order to exclude such information.
4. Suggest that the court determine for itself, through in camera proceedings, whether the use of the client records or test data is relevant to the issues before the court or whether it might be insulated from disclosure, in whole or in part, by the therapist–client privilege or another privilege.
5. Suggest that the court deny or limit the demand because it is unduly burdensome on the psychologist.
6. Suggest that the court shields from production "psychotherapy notes," if the psychologist keeps separate psychotherapy notes as defined by HIPAA privacy regulations.
In this section, we discussed three strategies to present to the supervisee to be able to use in order to protect a client’s right to confidentiality if subpoenaed by the court. These three strategies are gaining client consent, negotiation, and seeking guidance from the court.
What are three strategies that you might be able to use in order to protect a client’s right to confidentiality if subpoenaed by the court?
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