“Coping with subpoenas”: No longer consistent with law, ethics, or social policy.

Abstract

The Committee on Legal Issues (COLI) has updated the 'Coping with Subpoenas' article (COLI, 2016). It is a welcomed update of this series, but it is no longer consistent with law, ethics, or social policy. This commentary addresses problematic sections of the article, regarding the difference between privilege and confidentiality, which laws apply, and when laws require or prohibit disclosure.

A Subpoena: The Other Exception to Confidentiality

“…Privilege and confidentiality are not the same (Borkosky, 2016; Saltzburg, 2012). Privilege is essentially the impenetrable shelter under which what is shared between a client and a member of the elite category of professionals permitted to dwell there will be housed.…”

“…Privilege pertains to the access to certain information through the legal system. Certain professionals, specifically including psychologists, doctors, lawyers, and priests, can assert a refusal to share in the context of a legal proceeding what has been disclosed to them by a client because the law recognizes the sanctity of those relationships (Borkosky, 2016). There is a quandary as to why psychologists have the ability to assert privilege, when professional cousins in counseling and social work cannot.…”

“…The Health Insurance Portability and Accountability Act (HIPAA) brings different protections for the privacy of a patient’s personal medical and medically related records but still none as invulnerable as privilege. Although HIPAA providers, whether medical or clinical mental health, require authorizations from patients prior to the release of records in general, the HIPAA regulations are loosened in response to a HIPAA-compliant subpoena even if the patient does not sign an authorization or waiver, and there are certain exceptions including where the patient is a victim of abuse (Borkosky, 2016).…”

Committee on Legal Issues (COLI) response to commentary.

“…This Response answers a commentary (Commentary), titled Coping With Subpoenas: No Longer Consistent with Law, Ethics, or Social Policy (Borkosky, 2016), which critiqued COLIs, 2016 Article. Unfortunately, the Commentary confuses more than it clarifies.…”

“…Unfortunately, the Commentary confuses more than it clarifies. To begin, the Commentary claims that the Article is “no longer consistent with law, ethics, and social policy (Borkosky, 2016, p. 250).” Yet the Commentary, referring only obliquely to subpoenas and compelled testimony, does not speak to the central issues that the Article addresses. Then the Commentary, offering three primary criticisms, asserts that the Article inadequately distinguishes “privilege” and “confidentiality,” that it misapprehends the implications of the Health Insurance Portability and Accountability Act of 1996 (HIPAA, 1996) for the disclosure of Protected Health Information, and that it fails to stretch its scope even further to inform psychologists precisely what to disclose or how to exercise their discretion in various situations.…”