PLEASE BE ADVISED THAT WE CANNOT PROVIDE YOU WITH ANY LEGAL ADVICE UNLESS YOU ARE A CLIENT OF THE FIRM. 303–292–1020 303–292–1020

NEWS

As you are aware, this law firm protects our mental health and medical professional clients from subpoenas. When you are subpoenaed to produce your client’s file, or to testify in court, please do not produce anything or go to court or provide any statement before you contact us. You have three masters that you serve: DORA, HIPAA, and the courts. The three are in conflict sometimes. For example, an attorney may try with a subpoena to get you to produce records or testify, if proper guardrails are not in place, in a manner that helps their client and gives them a tactical trial advantage. However, your compliance could result in a disciplinary proceeding with DORA, or fines and penalties from HIPAA. What is in the attorney’s client’s best interest, is often not in your best interest. Three district court decisions came down in the past year and a half, of which we participated in two, and which successfully advocated for our therapists and mental health providers regarding subpoenas:

In the first case, called the Speed case, the court extended the L.A.N. case to civil actions. The parties objected to the subpoena and requested a protective order. This is the standard practice when a therapist receives a subpoena. The court held that when a mental health client and/or medical client injects their physical or mental condition into a case an implied waiver of the psychotherapist-patient privilege can exist. For example, this happens if your patient/client is in an automobile accident and they file suit against the other driver for injuries they have sustained including mental health injury, emotional distress, and PTSD. The court, in a very thoughtful decision, held that the court must inspect mental health records in camera, (which means in chambers, privately) before any mental health records are to be released. If ordered by the court, after a motion to quash a subpoena and for protective orders has been ruled on, you must produce the records directly to the judge; this will be done by your legal counsel. In addition, the court held that your patient/client may request that the records be reviewed by a court-appointed psychotherapist rather than the court. Only those records relevant and necessary to the proceeding would be produced to the adverse party. Your attorney would also ask for strong confidentiality over those records. This decision is rapidly becoming the standard for district courts across Colorado. We have advocated for it again and again and the judges are very respectful of your position as a therapist or medical provider and your professional obligations to the regulators. Judges really endeavor to protect the need for therapy your client has and are mindful of your client’s confidentiality.

The second case
is the Hamp decision which addressed our motion to quash a subpoena and for protective orders. The adverse party issued a subpoena asking for all the records the mental health professional had in her possession. The court held that the scope of the therapist-patient privilege is very broad, even broader than in a proceeding regarding medical professionals. The privilege of confidentiality applies directly to the therapist and their patient/client and extends to those derivative clients, such as members of the patient/client’s family, who would be adversely affected by the production of those records. In the Hamp decision the district court held that on occasion, if both parents have privilege and one parent requests the child’s mental health records, that parent’s request may not be in the best interest of the child. The court must therefore hold a fact-finding hearing to determine whether waiver of the privilege is in the best interest of the child.

The privilege’s purpose is to preserve the atmosphere of confidence and trust for effective psychotherapy. The court went on to say that juvenile patients require this privacy protection due to the sensitive nature of children’s mental health. The court was concerned that in the instance of this case, it may be a situation in which a parent had an incentive to strategically waive the privilege in a way that would harm the child.

The court also held, with regard to HIPAA, that a valid waiver must be presented with the patient/client’s consent, either through a guardian ad litem, or if the child is 12 or over, by the child themselves. The court further held that the issuance of a subpoena was not a valid release in itself. Attorneys will often tell you otherwise; Don’t be fooled. This can be a HIPAA violation.

In the third case, the Jefferson County district court considered an action against one parent who was accused of sexual assault on a child. The victim was the defendant’s daughter, who was the patient/client of the mental health professional. We filed a motion to quash and for protective orders to protect our therapist. The court held that HIPAA does apply and the court must weigh the public interest and the need for disclosure against the needs of the victim, the therapist-patient relationship and their treatment services. The defendant argued that the child had waived her claim of confidentiality under the therapist-patient privilege. The court rejected that argument and said that the child did not waive their therapist patient/client privilege by being the victim of an alleged sexual assault. Our motion to quash was granted.

Summary:

We appear before courts addressing subpoenas many, many times per year. Please bear in mind that each situation is unique and that these cases are a general summary of the court decisions, and you should not rely on our summary to apply to your case. These summaries are for educational purposes only. In the even you receive a subpoena, please let us know right away. If you receive a request from a parent to produce their child’s records to use at any hearing before the court especially in contested child custody matters, or if you even receive a request from counsel to voluntarily produce your records, do not do so before you consult with us or with your law firm. Please be sure that experienced counsel represents you in any such matter. Otherwise, you will likely have a DORA complaint filed against you by one of the parents or even the child, for improper disclosure or opinions that you should not have made. This typically occurs when one parent wants you to endorse their argument for parenting time or to disparage the other parent. Never, ever, volunteer such information without consulting with legal counsel. We have appeared before DORA and HIPAA many times over the last forty years, in defense of our clients who have been grieved. Please do not always trust what Family Law Lawyers tell you is okay. They are aggressive for their clients as they should be, but they often do not know what DORA requires of you on HIPAA compliance.

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