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Therapists who receive a subpoena requesting patient information should immediately inform the patient. If the patient has no attorney or is a non-party in the court case, the therapist must wait ten days before producing any documents. This gives the patient (or other parties in the case) time to file a Motion to Quash (i.e., to request that the judge disallow the "discovery" of these documents as potential evidence in the case). Meanwhile, the therapist is also legally free to file a Motion to Quash, requesting that the judge protect the records. The Sample Form below can be used for that purpose. This form must be personalized to fit your own circumstances, as well as the details of each case. You should have your attorney review your personalized version of this form. If you file a Motion to Quash, a copy must be sent to the attorney who issued the subpoena, and this must be so noted in the Motion. For other details about procedures, read carefully Virginia Code §32.1-127.1:03 Section H. [Go online to http://leg1.state.va.us/ -- Under "searchable databases," click on "Code of Virginia" and type in the relevant statute number.] The Sample Form below contains fictitious names and places and uses sample arguments. See further possible considerations and legal arguments on the next page. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF JEFFERSON Jane
Doe, Complainant, v. MOTION TO QUASH Comes now James B. Quick, Ph.D. [by counsel?] and files this, his motion to quash a subpoena duces tecum which was served on him at the request of the [respondent? complainant?] to be returned on _________ [response date/time as stated on the subpoena]. A copy of this motion is being provided to the attorney [party?] who issued this subpoena. In support of his motion, Dr. Quick states as follows [insert relevant identification and circumstances]: 1. He is a psychologist licensed by the Board of Psychology in the Commonwealth of Virginia. 2. He has a duty to maintain the confidentiality of the material sought to be compelled by the subpoena duces tecum. 3. The information sought to be compelled by the subpoena duces tecum is protected as a privileged communication. [Cite therapist-patient privilege statute for your profession; see relevant statute numbers below.] 4. On information and belief, the information sought to be compelled by the subpoena duces tecum is totally irrelevant to the proceeding. 5. No circumstances exist demonstrating relevancy or necessity for the production of such materials. 6. [Include all further relevant arguments (e.g., see next page).] WHEREFORE, James B. Quick, Ph.D. respectfully prays that the Court enter an order quashing said subpoena duces tecum and that the Court set for hearing, prior to the issuance of any subsequent subpoena duces tecum, the issue of whether or not the material sought to be compelled is privileged or otherwise protected by law. JAMES B. QUICK, Ph.D. [by counsel?]
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A. The information being sought by the subpoena is presumed to be privileged. B. Virginia Code §32.1-127.1:03 Section H (paragraph 6), requires judges to consider the following when deciding whether to require medical or mental health records to be used as evidence:
Arguments
for Initiating a Motion to Quash a Subpoena Duces Tecum The following arguments have been used to successfully protect confidentiality when Virginia therapists' records were subpoenaed at the "discovery" stage of custody cases. Many of these would also apply in other types of cases and with other subpoenas. 1. The information is initially presumed to be privileged. [§8.01-399, §8.01-400.2] 2. A subpoena duces tecum is not appropriate as an "opening ploy" in a divorce or custody case. Such can be an abuse by a parent not sincerely trying to seek custody, attempting to intimidate the other parent and/or to pull the child into the conflict, or trying to delay the custody determination. 3. If custody is seriously in dispute, a guardian ad litem can be appointed to decide whether "discovery" of the child's records as evidence, or testimony by a therapist, is appropriate and in the child's best interest. If the child's records (or therapist testimony about a child client) is subpoenaed, it is especially important to consider the impact on trust, the effect on current and future therapy relationships, and possible detriment to the child's interests. 4. Records over one year old are arguably not relevant to the current proceeding. The same might apply to the testimony of previous therapists. 5. Treatment records often contain personal matters completely irrelevant to the issues in the custody case. The information they contain was not collected for that purpose, and may be misleading. 6. It is an ethical guideline of some mental health professions that raw psychological data (e.g., test protocols, therapy notes) should not be disclosed to non-professionals who are unqualified to interpret them. If produced at all, clinical records should be sealed to the judge (or to the guardian ad litem in a child case). 7. A "prospective custody evaluation," with access to all parties, can provide direct evidence of the child's parenting needs; the child's relationship to both parents; and the parents' relative abilities to meet those needs. The information in therapy records was not gathered for these purposes, and is arguably not relevant towards these purposes. 8. Virginia judges now have some new (and very broad) options for protecting mental health records under the 1997 Health Records Privacy Statute §32.1-127.1:03; paragraph H, 6. For example, judges may now consider: the specific purpose for which the information was collected; the degree to which disclosure would embarrass, injure, or invade the privacy of the individual; the effect of the disclosure on the individual's future health care; the importance of the information to the lawsuit or proceeding; and any other relevant factor. [This list was extensively revised and updated from one initially provided by Francis McQ Lawrence, Esq., a Charlottesville attorney, for publication in Ethical Issues in Clinical Practice Under Virginia Law (Fisher, 1991, p. 102). It has been shortened to delete references to the subpoena of parents' treatment records, no longer allowed since the 2003 adoption of Virginia statute § 32.1-127.1:04.] | ||||||||||||||||||||||