The Subpoenaed Social Worker: Protecting Patient Privacy and Avoiding Liability
More and more, lawyers are turning to the records of social workers for evidence to support their cases. The result? Social workers are increasingly likely to find themselves on the receiving end of subpoenas. Here are the steps to protect the client and the practice.
WHAT IS A SUBPOENA?Put simply, a subpoena is a formal demand for evidence. It may be issued by a judge, a magistrate, a government agency with proper authority, or--depending on the state--an attorney.
Subpoenas typically come in two varieties: A subpoena to appear in person to give live testimony, and a subpoena to produce patient records. The first--known alternatively as an appearance, trial, or deposition subpoena--requires the social worker to appear on a specific date at a specified location to give sworn testimony before a judge, an agency, or a court reporter. In nearly all cases, the social worker is entitled to have personal counsel present to make objections and protect the social worker's interests during the testimony.
Far more common, however, is the subpoena for documents, often called a subpoena duces tecum. At first glance, these document subpoenas can look a lot like an appearance subpoena. This is because many of them contain a request for the social worker to appear before a court reporter on a specific day. Only, in this case, the appearance requirement is waived if the social worker timely produces the specified records.
If there is something both subpoenas share, it's that they have the potential to carry the weight of a court order and shouldn't be ignored.
RAISING OBJECTIONSAs any social worker knows, turning over patient records carries a risk of its own. State and federal patient privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA), restrict the disclosure of protected patient information and can impose hefty fines for improper disclosure.
Fortunately, social workers have recourse. Utah court rules offer detailed instructions on when a social worker has the right to object to a subpoena. For example, most subpoenas are required to allow at least 14 days for a practice to produce records. Anything less than that and the social worker may be off the hook by raising a timely written objection.
Other instances that could render a subpoena objectionable include unusually burdensome or expensive requests. Subpoenas originating from states where the social worker does not practice may or may not be objectionable depending on the circumstances.
PROTECTION AGAINST PRIVACY CLAIMSProper objections to a subpoena often result in the Court issuing a clarifying order--to the great benefit of the social worker. This is because acting in compliance with a court order offers broad protection against privacy laws. The same goes for judge-issued subpoenas.
The subpoena with the least amount of shelter also happens to be the most common within the state of Utah, and that is a subpoena prepared by an attorney. These do not carry the full weight of a court order, nor the full protection against claims of wrongful disclosure of private patient information.
Knowing this, Utah attorneys will often include with their subpoenas proof that the social worker's client has been notified of the subpoena and given a chance to object. This notice tends to show that the client has waived any objections to the disclosure of records, providing protection to the social worker, client, and attorney.
Better still, attorneys may provide authorization from the client for the release of his or her records, offering the social worker the strongest protection possible.
If a subpoena asks for particularly sensitive or voluminous information, comes from out-of-state, appears to be disruptive to therapist/client trust, or otherwise appears questionable, don't hesitate to request that the attorney provide an authorization from the client to disclose the information.
If there is one thing a social worker should never do, it is disregard an apparently defective or problematic subpoena. If something is troubling about a subpoena, a timely objection in writing made before the time to respond expires can protect not just the social worker, but the client. Be sure to speak to counsel or submit a written objection to the judge. Typically, the duty to respond to a subpoena is put on hold once a written objection is filed until the court has a chance to rule on the objection.
PSYCHOTHERAPY NOTESOf particular concern for therapists and social workers is the issue of psychotherapy notes. The federal privacy regulations under HIPAA have special provisions for these notes, which are usually not subject to a simple subpoena. Instead, the attorney needs to obtain a court order or a specific authorization from the social worker's client to release psychotherapy records. An authorization for "all records" or "complete medical chart" that does not mention the psychotherapy records is insufficient.
Ultimately, each situation is unique, meaning questions of what objections to raise, what records to produce, and whether the subpoena is valid have to be answered on a case-by-case basis.