You’ve Been Served: A Mental Health Provider’s Guide to Records Requests

Received a subpoena or court order for confidential information? We untangle some of the issues around releasing your therapy patient’s records.

Mental health providers engage with highly confidential health information on a daily basis. From our experience, psychiatrists and therapists also tend to be sensitive to the information in their patient records and very HIPAA-literate.  For these reasons, a police request or court order for patient records can be stressful and confusing. Who has the right to access your records, and what are you really required to do?

Generally, a patient’s record can only be obtained by the patient or by a minor patient’s parent or guardian. [Check out our previous post: “Don’t Tell My Mom”: A Guide to HIPAA Compliance for Minor Patients] However, the Illinois Mental Health and Developmental Disabilities Confidentiality Act provides certain exceptions to the rule, including when a law enforcement or court official is the person requesting your patient’s information.

When our clients receive such records requests, Jackson LLP’s healthcare lawyers typically respond to the request on their behalf. This notifies the requesting party that you’re represented by an attorney, and it also ensures that your disclosures satisfy both your duty to comply with the requestor’s order and your duty of confidentiality to your patient.  Time is of the essence, so if you’ve received a subpoena or request, schedule your free consultation.

Who can send me a law enforcement or court records request?

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 your patient is involved in a lawsuit and the other party sends you 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 your disclosures – for example, in some cases, your client’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.

What information am I required to hand over?

Disclosing any patient information typically makes a mental health provider’s stomach roll—that sensitivity to patient privacy is at the heart of your training and clinical instincts. It should also guide your disclosure of patient records, ensuring that you disclose only what is being requested of you and nothing more.

If you have received what your attorney determines to be a valid police or court records request for one of your patient’s treatment records, you will typically be required to hand over the entirety of your record, except for the following information:

• Personal Notes: A mental health therapist’s personal notes are considered part of the therapist’s personal property rather than part of the patient’s file. Personal notes can include things like the therapist’s own impressions, thoughts, and opinions on the patient, confidential information that is told to the therapist on the condition that it is never repeated to anyone else, and information that can potentially be damaging to a patient’s relationship with others. Thus, a therapist is not obligated to hand over his or her personal notes about a client in response to a police or court order.
• Test Materials: If you receive a patient’s information through a psychological test you conducted, and the test is still ongoing, then you are not required to disclose the patient’s information. The nature of many psychological tests is that the subject does not know about the nature of the test before participating in the test, so disclosing this information would nullify the test results.

There are, of course, exceptions to these exceptions. When in doubt, your healthcare attorney will guide you through the process of disclosure, which might require us to contact the court or requesting party’s attorney directly.

Isn’t there a safety exception?

Another notable exception to the rule limiting disclosure of personal information to law enforcement is the safety exception. According to the guidelines issued by the American Hospital Association, a mental health provider may typically release confidential patient information to law enforcement if the therapist believes in good faith that doing so will prevent immediate and serious harm. The therapist’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.

What should I do if I receive a records request?

If you received a request for confidential documents relating to one of your patients, schedule a free consultation with our attorneys. Our attorneys can help you determine whether the request is valid and identify the scope of documents that you’re required to hand over.