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Confidentiality: Legal Issues
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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 legal, confidentiality-protecting strategies include: gaining client consent; negotiation; and seeking guidance from the court.
3 Legal, Confidentiality-Protecting Strategies
♦ Strategy #1 - Gaining Client Consent
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, you receive a subpoena that you may be required to divulge client records or test data, you may want to discuss the implications of the demand with the client. Also when appropriate and with the client's valid consent, you may consult with the client's attorney.
Your discussion with your 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. For more information, see APA Ethics Code, Ethical Standards, Section 4.
♦ Strategy #2 - Negotiation
The second legal, confidentiality-protecting strategy is negotiation. If a client does not give consent to release of the information, you may seek to prevent disclosure through discussions with legal counsel. Your position in such discussions may be supported by legal arguments against disclosure, including your 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 nonconfidential 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 attorney or the client's attorney.
♦ Strategy #3 - Seek Guidance from the Court
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 or your attorney to write a letter to the court, stating that you wish to comply with the law but that you are 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
In writing such a letter, you may request that the court consider your 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:
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.
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.
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.
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.
Suggest that the court deny or limit the demand because it is unduly burdensome on the psychologist
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 that you might be able to use in order to protect a client’s right to confidentiality if subpoenaed by the court. These three legal, confidentiality-protecting strategies include: gaining client consent; negotiation; and seeking guidance from the court.
Peer-Reviewed Journal Article References:
Chenneville, T., & Gabbidon, K. (2020). HIV, confidentiality, and duty to protect: Considerations for psychotherapists in the age of treatment as prevention. Psychotherapy, 57(1), 7–14.
Committee on Legal Issues, American Psychological Association. (2016). Strategies for private practitioners coping with subpoenas or compelled testimony for client/patient records or test data or test materials. Professional Psychology: Research and Practice, 47(1), 1–11.
Forrest, L., Elman, N. S., Bodner, K. E., & Kaslow, N. J. (2021). Trainee confidentiality: Confusions, complexities, consequences, and possibilities. Training and Education in Professional Psychology.
Hudgins, C., Rose, S., Fifield, P. Y., & Arnault, S. (2013). Navigating the legal and ethical foundations of informed consent and confidentiality in integrated primary care. Families, Systems, & Health, 31(1), 9–19.
Mandalaki, E., & Fotaki, M. (2020). The bodies of the commons: Towards a relational embodied ethics of the commons. Journal of Business Ethics. Advance online publication.
Stiles, P. G., & Petrila, J. (2011). Research and confidentiality: Legal issues and risk management strategies. Psychology, Public Policy, and Law, 17(3), 333–356.
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