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Subpoenas, Court Orders, and Privilege
Privilege:, Subpoena:
A …
Subpoenas, Court Orders, and Privilege
Privilege:
Privilege is a legal term. Privilege protects information that is shared between the client
and the therapist from being shared in legal proceedings.
● The client is the one who holds the privilege. If a lawyer subpoenas the
client’s record, the therapist can assert privilege on behalf of the client if that is what
the client wants the therapist to do. Ideally, the therapist should ask the client first
and they can decide whether they want us to release the record or assert privilege
on their behalf.
● The ability to assert privilege allows us to withhold client information and medical
records when we receive a subpoena from a lawyer/attorney.
● There are limits to privileged information: If you receive a court order (may also
be phrased as ‘an order from the judge’, or a ‘subpoena from the courts’ or
‘subpoena from a judge’), you cannot assert privilege. Since it is coming from the
court, privilege does not apply and we must comply with the order.
Note: asserting, exerting, and invoking privilege are all referring to the same thing
Subpoena:
A subpoena is a formal written order and it can come from a lawyer/attorney or from the
courts/a judge. A subpoena can be for written documents (the client record) or to appear
in court (give testimony). How you respond to a subpoena will vary based on 1. who it is
from and 2. what it is for.
Court order (subpoena from the court or judge):
A court order is a legal command issued by a judge/the courts. Unlike a subpoena from a
lawyer/attorney, we cannot assert privilege for a court order.
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1.
Subpoena from the court/judge (court order) for the written record,):
you CANNOT
assert privilege here. It is your legal responsibility to provide the information to the
court, and you cannot use privilege to avoid that responsibility (privilege does not
apply to court orders/orders from a judge).
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a. If you think the release could be damaging to your client, you can advocate
for a limited release/no release of records; however, if the court denies that
request, you must provide them with everything they have asked for or else
be held in contempt of court. And if you don't have an answer option
regarding advocating for the limited release due to fear of harm to the client,
you should provide the information immediately.
b. For the exam, this is not a situation where you will first notify the client. You
will either be releasing the record or advocating on behalf of the client for
limited release/confidentiality of the record.
a. Keep in mind that ‘contacting the client’ or ‘contacting the client to determine
their wishes’ are both okay answer options here. We would not, however,
‘contact the client to warn them of the pending release’ because in this
scenario, there is no pending release; whether we are going to release the
record or not is up to them.
b. If contacting the client isn't an option, or if you are unable to reach them, you
would assert privilege on their behalf.
c. One other answer option that is possible is to consult with your agency’s
legal counsel. This is seen less commonly, but if it is an answer option (and
you’re working at an agency) you can do this first, even before contacting the
client to determine their wishes.
note: This is discussed throughout audios in TDC, but this is just a reminder that
the exam you’re taking is a national exam; it is the same across all 50 states. Because of this,
state specific laws aren’t tested. If you see an answer option to ‘follow jurisdictional
regulations’ or ‘report according to jurisdictional regulations’ that is a great answer option
to go with. It acknowledges that there are policies and laws that vary state to state.