Two very common scenarios like this include receiving a subpoena and requests from patients to write third-party advocacy letters. The following is a broad overview of risk management considerations and strategies for these situations.

 

Subpoenas

     A psychologist may receive a subpoena in various situations (e.g., when a patient is involved in a personal injury or wrongful termination lawsuit or a custody/visitation dispute). Psychologists who receive a subpoena must respond to, but will not always comply with, the request.

It’s important to note that how one responds to a subpoena depends on multiple factors and requires an understanding of relevant federal and/or state law. Consultation on the specifics of the subpoena and situation is always recommended.

     Here are some general steps to consider, but these should not be taken to be appropriate in all situations or to take the place of necessary consultation. 

     * Consider the subpoena's validity (things like proper service, jurisdiction and adequate response time are all relevant.)

     * Identify exactly what is being requested (e.g., full records, records from a specific time period or testimony.).

     * Reach out directly to the patient. Discuss the request and inform them about the content of the record so they can make a fully informed decision about disclosure. Explicitly discuss any possible risks of authorizing the disclosure (e.g., the clinician will not be able to control how information is used or interpreted following release, the information may possibly harm the patient’s legal case, or the release may negatively impact any ongoing therapy relationship.)

     * Document all discussions carefully.

     * If the patient chooses to allow the disclosure, obtain written authorization from the patient (including what will be released, to whom and for what purpose) and send only the information authorized for release.

     * The clinician must assert privilege if the patient does not authorize release.

     * In situations of complexity (e.g., subpoena for a minor’s record, when it’s unclear who can authorize disclosure, the patient can’t be located, or if limitations to the subpoena are being sought), consultation with an attorney or liability insurance carrier may be necessary.

 

Requests for advocacy letters

     Requests for these letters arise in many different contexts (e.g., a parent seeking a

statement about parental fitness, visitation or child custody, requests for Emotional

Support Animal letters, and statements about disability, accommodations or

educational safety) and raise multiple potentially problematic issues that clinicians

should carefully consider before proceeding. 

     Writing such a letter may place the clinician in a forensic (as defined by the APA Specialty Guidelines for Forensic Psychologists) or quasi-forensic role, which raises concerns about inherent conflicts of interest and/or potentially impairing multiple relationships that occur when a clinician acts as both an evaluator and treating clinician for the same patient.

     Other potentially problematic issues include: boundaries of competence; lack of important collateral data; reliance primarily or solely on patient self-report; potential for unevaluated exaggeration or malingering and in some cases a lack of guidelines and standards. As a result, it is important to consider these role shifts with an abundance of caution, and in many instances, it is prudent to refrain from writing such a letter for one’s patient.

     The following inquiries can help guide decision-making:

     * Am I competent to offer relevant information on this topic?

     * Are there relevant ethics guidelines, regulations or laws of which I should be aware?

     * Have mental health providers been sanctioned for writing letters of the sort being requested?

     * Would writing a requested letter put me in an impairing multiple role or a forensic/quasi-forensic role with concomitant conflicts of interest?

     * What are the potential consequences of both providing or not providing the information?

     * Does writing the letter further involve me in the patient’s external matter? If so, how should I deal with it?

If after careful consideration, a clinician decides to provide a letter, the following risk management strategies can be helpful:

     * Consultation with experienced individuals is always a valuable step.

     * Stay within the scope of one’s role as a treating clinician by providing the facts of treatment only, declining to provide an opinion or conclusion about the ultimate legal/administrative matter.

     * Clearly outline any limitations of the data upon which the letter is based (e.g., patient self-report only or psychologist’s observations in sessions.)

     In addition, it’s essential to talk openly with the patient about the limits of the clinician’s role as a treating provider and any potential risks of involving the clinician in the matter. It is possible that a patient may disagree with the letter or its conclusions or may feel betrayed by the disclosures. If the patient does not get the desired outcome because of the letter, this could cause a rupture in the therapeutic relationship. This possibility should be explicitly discussed with the patient ahead of time.

     Finally, remember that declining such requests in most situations is OK.

     The above is a general overview of risk management considerations in court or administrative situations. Clinicians are strongly encouraged to seek specific consultation if such situations arise in their practices.