I was told that a therapist cannot release mental health records of their patients without first getting consent but I'm wondering if this rule would apply if law enforcement served the subpoena. Do therapy notes and patient confidentiality rules differ when it's law enforcement saying that they want the records but want to access the records without me knowing about it?
The therapist can release your records without your consent if served with a subpoena, or an investigative demand. If the latter, it must be stripped of personal identifiers. However, I still think that you can request your therapist inform you of any disclosures. Someone with criminal law experience may know whether there is a special circumstance in which they could keep the disclosure from you, but I am not aware of any.
Real Estate Attorney
Some states do have a statutory privilege for this kind of communication. The privilege is not absolute but certainly makes it harder to get at the communications. Here is a good publication to explain NY's position on this: http://www.omh.ny.gov/omhweb/facilities/bupc/doc/Understanding_HIPAA6-2012.pdf
This answer does not establish an attorney client relationship and is just my opinion based upon the limited facts presented.
Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania, Delaware, New Jersey or Federal law apply, unless otherwise specified.
That being said, HIPAA does not allow a health care provider to ignore service of process of a subpoena; you will likely receive notice of the subpoena first, however. In that case, you can file to quash the subpoena; judges tend not to like when therapists are forced to provide medical records. The records may not be usable in court, however, due to the therapist-patient privilege (which is not absolute - depends on the facts of your case).
/Christopher E. Ezold/
I am an attorney licensed in the Commonwealth of Pennsylvania, and the States of Delaware and New Jersey. My practice includes employment, business and health care law. Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania, Delaware, New Jersey or Federal law applies.