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March 1999 No matter the type of clinical practice a mental health care professional enjoys, the odds are almost certain that one of your patients will be involved in litigation. Frequently, during the course of discovery in a legal proceeding, a patient’s mental health becomes an issue. Most often the attorneys involved in that case will serve a subpoena on a psychiatrist to produce his records, give a deposition or come to trial and testify. Should you respond to that subpoena and turn over your records or give a deposition? The answer is usually NO. Many times psychiatrists will respond to general subpoenas since they appear to be court orders which must be followed or risk a contempt of court citation. However, although subpoenas for records, deposition or trial testimony are “court orders” or “writs of court” which should be complied with; when these subpoenas are issued for mental health records, the Illinois Mental Health and Developmental Disabilities Confidentiality Act takes precedence. Under Section 10 (d) of the Act: No party to any proceeding...shall serve a subpoena seeking to obtain access to records or communications under this act unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or issuance of the subpoena. No person shall comply with a subpoena for records...unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or disclosure of the records. Accordingly, unless that subpoena is accompanied by a separate written order issued by a judge specifically authorizing the issuance of the subpoena, DO NOT RESPOND to the subpoena. In Renzi v. Morrison, the First District Appellate Court held that a therapist who voluntarily disclosed a psychiatric patient’s confidential communications, as a witness for the patient’s spouse in a divorce proceeding, could be held liable for damages. In that case, the therapist appeared at the trial, and the patient objected to him testifying about her psychiatric evaluation or communications. The judge overruled the objection and stated “I’m going to let the therapist testify.” The appellate court held that even though the judge allowed the therapist to testify, the therapist could still be held liable for damages since the therapist appeared at the trial voluntarily and not pursuant to a properly issued subpoena. In Mandziara v. Canulli, decided September, 1998, the First District Appellate Court held that an attorney violated the Mental Health Confidentiality Act by serving a subpoena for records without first obtaining a court order, even though the subpoena called for the records to be produced to the trial judge for an in camera review. In this case, the records keeper for a community hospital came to court in response to a subpoena and handed the records directly to the trial judge for his review. The judge asked the records keeper some questions and then directed his questions to the patient. The court found the attorney violated the Confidentiality Act by serving a subpoena on the hospital without a court order. We are currently involved in a case where a psychiatrist received a subpoena to testify in court. This therapist consulted with his attorney who advised to respond to the subpoena. The psychiatrist testified in court. The IDPR found out about this and brought an action against the therapist for breaching the Confidentiality Act. The subpoena was issued in violation of Section 10 (d) of the Act. The real problem and concern for therapists on this issue is that most attorneys and judges do not understand nor fully appreciate the Confidentiality Act. Attorneys rarely comply with the provisions of Section 10 (d) of the Act and judges allow therapists to testify in violation of the Act. Moreover, attorneys sometimes threaten therapists if they refuse to respond to a subpoena. Generally, attorneys simply issue a regular subpoena to all physicians. These regular subpoenas do not contain a separate court order authorizing issuance of the subpoena or disclosure of the records. Therefore, although physicians can respond to this subpoena, therapists are prohibited from complying with this regular subpoena. The confidentiality of mental health records is of paramount importance to the patient. Nothing in the Act excuses the requirement that a court order be obtained before subpoenas are to be issued. Do not respond to any subpoena unless it is accompanied by a separate, specific court order. |
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If you would like more information about the issues in the above article, or about Beranek, Feiereisel & Kasbohm & Hammer, please address your inquiries to Scott Hammer at shammer@bfkhlaw.com. You may
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