Therapists and others in the mental health community are often unsure what to do when confronted with a request for a client’s therapy records from a divorce lawyer. Here are a few practice pointers based on what I have learned over the years in this evolving area of law.

First, how was the request made?

Sometimes a request is made in the form of a stern letter, email, telephone call from a person who is not a client, such as an attorney. Unless the client provides written consent, a therapist is prohibited from releasing the records.

More often a therapist will get served with a subpoena in the course of divorce litigation.

This is where it can get a little complicated. If served with a subpoena, it must first be determine whether it is a HIPPA compliant subpoena.

What is a “HIPPA compliant” subpoena?

A HIPPA complaint subpoena is one that should provide you with written evidence that  reasonable efforts had been made to:

• Notify the person who is the subject of the information about the request, so the person has a chance to object to the disclosure, or
• Seek a qualified protective order for the information from the court.

(Source: United States Department of Health and Human Services)

Service of a HIPPA compliant subpoena will most likely come with an additional document, usually a copy of a letter to the mental health client, informing them that their records are being requested and providing them a time within which to file an objection.

When a proper HIPPA compliant subpoena is served, the mental health client should be contacted immediately to verify that they are aware of the request and to further inform them that if the time period for objection passes and they have taken no action, their records must be released. 

If an objection is made, it will likely be in the form of a letter notifying the therapist that an objection is being made and requiring that confidentiality be maintained. This letter may also be accompanied a copy of a filed motion to quash the subpoena. In this instance, the therapist should not release anything unless ordered to do so by the court after it has heard, and denied, the objection.

Therapists sometimes think they have a responsibility to review the records and determine if the contents are related to the litigation before the records can be released.  This is not correct. Issues of relevance and admissibility are governed by court rules. That’s the purpose of HIPPA’s notice provision; to allow a mental health client time to object and make his legal arguments to the court to try to keep the records private.

Divorce litigation can be dirty and underhanded and sometimes a divorce lawyer will subpoena mental health records just to try and find some dirt on the other party. As our courts have held, this is an impermissible use of a subpoena.  As such, it is important for any person who receives notice of an intention to obtain mental health records to take the subpoena to their attorney.