(d) The failure or refusal of a licensee to comply with a court order made in connection with the execution of a subpoena requiring the disclosure of documents to the Board constitutes unprofessional conduct and constitutes grounds for suspension or withdrawal of the licence. In general, the application may indicate that the psychologist is ethically obligated not to provide or testify to confidential records or test data, unless required to do so by the court or with the client`s consent. This may include a request that the court consider the psychologist`s obligations to comply with federal requirements (such as HIPAA) and to protect the client`s interests, the interests of third parties (e.g., test publishers), and the public interest in maintaining the integrity and continued validity of the tests themselves. The request could also be aimed at suggesting ways to minimize the negative consequences of disclosure. For example, the psychologist may suggest to the court: If a lawyer attempts to make a person`s mental records admissible in court, he or she must follow the procedure set out in paragraph 10(d) of the Mental Health and Developmental Disabilities Act. This section details how the subpoena must be accompanied by a court order to obtain a subpoena to obtain mental health records. This is important because when a lawyer tries to get information from someone, they are usually allowed to serve a subpoena without seeking a court order. Before a court can rule on the application for a subpoena, a written request must be made indicating the request, both to the individual and to the treatment provider. This gives both the individual and the processing institution time to object to the request or to ask a lawyer to assist them in objecting to the disclosure.
If a subpoena is issued without an approved court order and the treatment centre continues to comply, the treatment centre may be held liable for damages that come to the person. In addition, any subpoena served on a psychiatric treatment facility must include the following language: Psychotherapy notes are primarily intended for use by the therapists who created them. Therapists should understand that psychotherapy notes do not include a document that the therapist uses to make diagnostic or treatment decisions about a patient. Patients have the right to authorize the publication of psychotherapy notes; However, HIPAA does not require compliance with these requests (although state laws may do). In addition, patients are not allowed to receive a copy of psychotherapy notes (via HIPAA Patient Access Provision 164,524), although state laws may require such access. We generally agree with commentators` concerns that denying specific access to psychiatric records could create mistrust. However, to balance this concern with other commentators` concerns about the potential for psychological harm, we exclude psychotherapeutic notes from the right of access. That is the only difference we make between mental health information and other types of health information protected in the access provisions of this rule.
Unlike other types of protected health information, these notices are not widely disseminated in the health care system. We believe that the privacy interests of the individual in accessing these notes are therefore outweighed by the potential harm caused by such access. However, we encourage relevant companies that maintain psychotherapeutic notes to grant individuals access to these notes if they deem it appropriate. Sooner or later in their careers, most psychotherapists and counsellors are likely to receive a subpoena requesting client records. Therapists often respond with fear or respond with a fight or flight response when a subpoena is served, which can result in either ignorance of the subpoena or immediate provision of the requested records. Both reactions can be illegal, unethical and contraclinical. Responding to subpoenas can be complicated and complex, as legal requirements sometimes conflict with ethical guidelines and copyright laws.