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Virginia's therapist-patient privilege statute is much less protective of client confidentiality than those in most other states (Glosoff et al., 1997). (See Note 1.) This means that communications between Virginia therapists and their patients are less protected in court cases than would be true in most states. This, in turn, means that Virginia attorneys are accustomed to seeking information or testimony from mental health professionals, especially in child custody cases (Coughter & Tweel, 2002). It is therefore especially important for Virginia mental health professionals to understand their ethical responsibilities and to know how to exercise their legal options when they receive a subpoena. First, it is important to know the legal difference between a subpoena (which can be issued by an attorney) and a court order (issued by a judge). Contrary to the legal advice they might receive from the attorney issuing the subpoena (and sometimes even from the client's attorney), unless the client has signed a consent form authorizing release of the information, therapists have both an ethical responsibility (APA Committee on Legal Issues, 2006; Bennett et al., 2006; Koocher & Keith-Spiegel, 2008) and a legal responsibility ( Fairfax Hospital v. Curtis, 1997; U.S. Department of Health & Human Services, 2009) to notify the client and to see that someone files a motion requesting that the judge quash the subpoena. Filing the "motion to quash" permits a judge to make the final decision about whether disclosure is legally required, either by quashing the subpoena and issuing a protective order, or by issuing a court order requiring that the information be disclosed. Upon receipt of a subpoena, Koocher & Keith-Spiegel (2008) recommend that you ". . . contact your client, explain the situation, and ask for permission to talk with his or her attorney . . . ." (p. 210). That conversation with the client's attorney should be initiated only with the client's written consent. If the client does not wish the information to be disclosed in response to the subpoena, the conversation with the attorney should include a discussion of filing a motion asking the judge to quash the subpoena. Once a motion to quash has been filed (whether by you, your attorney, or the client's attorney), Virginia judges have some very broad options for protecting mental health records under the Health Records Privacy Statute (see §32.1-127.1:03; paragraph H, 6). For example, judges may now consider: (1) the specific purpose for which the information was collected; (2) the degree to which disclosure would embarrass, injure, or invade the privacy of the individual; (3) the effect of the disclosure on the individual's future health care; (4) the importance of the information to the lawsuit or proceeding; and (5 any other relevant factor. Remind the attorney to use these and other relevant arguments when filing the motion . (See Note 2.) Finally, in preparing for that conversation with the client's attorney, remember that attorneys are not always aware of your professional and ethical obligations about subpoenas, and they may therefore suggest that a motion to quash does not need to be filed. However, unless the patient has made an informed decision to release the information and has given you written consent to release it, you have no ethical basis for disclosing the information unless a judge so orders. Consider the advice below from a risk-management handbook published by a malpractice insurer, the APA Insurance Trust (Bennett et al., 2006) :
REFERENCES Bennett, B.E., Bricklin, P.M., Harris, E., Knapp, S. VandeCreek, L., & Younggren, J.N. (2006) Assessing and Managing Risk in Psychological Practice: An Individualized Approach . Rockville, MD, American Psychological Association Insurance Trust. Coughter, E. P. & Tweel, R. R. (2002) Family Law. U. Richmond Law Review 37, 155-198. (Discussing provisions of the now-repealed privilege statute, § 20-124.3:1.) Fairfax Hospital v. Patricia Curtis (1997). Virginia Supreme Court Record #962068, October 31, 1997. Glosoff, H.L., Herlihy, S.B., Herlihy, B. & Spence, E.B. (1997) Privileged Communication in the Psychologist-Client Relationship. Professional Psychology: Research and Practice, 28, 573-581. Koocher, G.P. & Keith-Spiegel, P. (2008). Ethics in Psychology and the Mental Health Professions: Standards and Cases, Third Edition. New York, Oxford University Press U.S. Department of Health & Human Services.(2009).Court Orders and Subpoenas [Under HIPAA]. See at http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/courtorders.html ================= Note 2. For examples of other possible arguments to use, see http://www.centerforethicalpractice.org/Form-MotionToQuash.htm April, 2009 | ||||||