Attorney/Lawsuit/Legal/Court Order Policy

It is usually not in the patient's best interest to provide an entire, confidential, psychiatric healthcare record. One reason for this is that it then becomes discoverable by opposing counsel. 

It is my policy that I do not interact with attorneys and do not submit the confidential psychiatric healthcare record without a court order from a judge. On occasion, I will provide a Treatment Summary to the patient to share with whomever they feel should have the information. 

It is the responsibility of the patient to interact with the courts and their attorneys regarding any personal legal complaints or disputes. 

Generally, a patient’s record can only be obtained by the patient or by a minor patient’s parent or guardian. Sometimes, there is a certain exception, such as when a law enforcement or court official is the person requesting your patient’s information. A police officer or an officer of the court (which might include the court itself or an attorney) can issue you a request for records under certain circumstances. 

If the patient is involved in a lawsuit and the other party sends  a records request, the request must be accompanied by a copy of a court order authorizing disclosure of the records. There are often other requirements restricting disclosures – for example, in some cases, the patient’s mental state or disability must be related to his or her legal claim or defense for your records to be released.

Before the records can be disclosed in a lawsuit, the presiding judge will typically first review the records to determine whether the requesting party’s need for the records outweighs the patient’s need for privacy. If the judge determines that the other party’s need for the records outweighs your patient’s privacy, then the judge will issue a court order authorizing disclosure of the records.

Disclosing any patient information typically is a thoughtful process for a mental health provider. 

There is sensitivity to patient privacy that is at the heart of our training and clinical instincts. It should also guide disclosure of patient records, ensuring that disclosure be only what is requested. 

If provider has received what the provider’s attorney determines to be a valid police or court records request for a patient’s treatment records, it is typically required to hand over the record, with some exceptions which may be noted by the provider attorney. 

SAFETY EXCEPTION

Disclosure of personal information to law enforcement is the safety exception. The mental health provider may release confidential patient information to law enforcement if the therapist believes in good faith that doing so will prevent immediate and serious harm. The provider’s belief may be based upon one of the following:

• It appears that the patient has escaped from a correctional facility or lawful custody under another person or institution, or

• The patient admits to participating in a violent crime that caused serious harm to the victim.

LEGAL CASES

I do not typically accept a patient with an active, open, pending lawsuit or court case. In the unusual circumstance when a patient and I agree to work together while a lawsuit is pending, it is the responsibility of the patient to discuss the details of this with their attorney. Please be aware that if you are an EMDR/Psychotherapy patient and have a pending lawsuit related to the trauma (or divorce, or child custody, or any other matter) - therapy has the potential to decrease symptoms of distress (this has the potential for unwanted outcome of your case). Also, therapy has the potential for activating/elevating distress before resolution of symptoms. Generally, any court ordered (obtained by subpoena) submission of therapy records for attorney review has the potential to adversely impact the court case. You are responsible for asking relevant questions and choosing to engage in therapy and you assume responsibility for all risk related to the outcome of your case.  

- [ ] Please take a copy of this document with you to discuss with your attorney. 

- [ ] EMDR/Psychotherapy can bring about relief of symptoms or can precipitate activation of symptoms.  

- [ ] A patient who pursues therapy with the intention of holding onto the related distress is counterproductive. 

- [ ] Therapy records can be subject to subpoena and court order and have the potential to be used against the litigant and have an adverse impact on outcome of the case. 

- [ ] It is the policy of this practice that a patient disclose if they are seeking therapy with the intention of requesting records for a lawsuit or court case. 

- [ ] It is the policy of this practice that a patient disclose an intention to request reimbursement for therapy services as an outcome of a lawsuit or court case.