The risks and benefits of disclosing psychotherapy records to the legal system: What psychologists and patients need to know for informed consent

Borkosky, Bruce; Smith, D. M.

doi:10.1016/j.ijlp.2015.08.003

Cited by 5 publications

(11 citation statements)

References 63 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…Misuse of the discovery process is contrary to the administration of justice and attorney professional standards. For example, defendants in civil litigation sometimes try to use mental health records to undermine the credibility of the plaintiff Borkosky and Smith (2015). Attorneys must certify that subpoenas are legitimate, that they have made a reasonable inquiry into matters 13 and that they are consistent with law, 14 not unduly burdensome, 15 and not done for any improper purpose 16 .…”

Section: Subpoena Problemsmentioning

confidence: 99%

“…Ambiguity may occur more often than one would expect because of the “boilerplate problem,” whereby attorneys utilize stock templates, catchall phrases such as “any and all,” and doing nothing more than changing the name of the recipient (Gensler & Rosenthal, 2017, p. 693). Many plaintiff’s attorneys have the client sign blank Health Insurance Portability and Accountability Act request forms, seeking all records from every doctor who has ever treated the client Borkosky and Smith (2015). Lastly, these overly broad subpoenas do not fulfill the proportionality requirements of the FRCP (Gensler et al, 2017, p. 695; as described below).…”

Section: Subpoena Problemsmentioning

confidence: 99%

“…If it appears that completion of an appropriate response before the compliance date is unfeasible, consider seeking a court order to extend both the compliance date and the date for filing objections.Assess the subpoena for content, procedural, and substantive problems.Contact the patient, his or her attorney, and the requestor. Contact the requestor and attempt to resolve any problems informally (e.g., by limiting the extent of the records disclosed).Contact the patient and his or her attorney to ascertain if they have been notified, are aware of the contents of the records, and if there are any concerns or objections.Have the patient complete informed consent to disclose records to the legal system Borkosky and Smith (2015).Decide whether to challenge the subpoena or to comply by disclosing the records. When deciding whether to challenge or comply, providers should weigh several factors.…”

Section: Writing and Filing Written Objectionsmentioning

confidence: 99%

“…Another consideration might be the likelihood of success; if, for example, requestors file a motion to compel, poorly framed arguments might impact the credibility of providers.Submit written objections (if applicable).Continue with further analysis. For example, patients may want to file a motion to quash or for a protective order, and providers may have ethical concerns contrary to patients’ desire to have their records disclosed.Document both the process by which the decisions are made and the disclosure itself Borkosky and Smith (2015).…”

Section: Writing and Filing Written Objectionsmentioning

confidence: 99%

“…The consequences for inappropriately managing subpoenas can be significant, for both patient and provider. There are several risks to patients, both for disclosing and refusing to disclose records Borkosky and Smith (2015). For example, disclosing one’s records can potentially risk the loss of employment, social standing, or further litigation; refusing to disclose could result in having one’s case dismissed or contempt of court.…”

mentioning

confidence: 99%

See 4 more Smart Citations

Responding to subpoenas: Written objections.

Borkosky¹

2020

Professional Psychology: Research and Practice

View full text Add to dashboard Cite

The correct response to subpoenas is confusing to many providers, often resulting in unauthorized disclosure or inappropriate withholding of patient records -with subsequent sanctions of various kinds. Because only legally valid subpoenas authorize the disclosure of patient records, one solution to this problem is to analyze subpoenas for various problems that might cause the disclosure of records to be prohibited. This article organizes the various potential subpoena problems into three categories: content, procedural, and substantive. In terms of content, subpoenas are required to contain specific text. Also, the process of requesting records must be procedurally fair. Finally, the disclosure of documents must be required under the law. If the subpoena is problematic, an appropriate response is to submit written objections. The various subpoena problems are described in detail and step by step recommendations for filing objections are offered. Finally, a sample letter of objection is provided. Public Significance StatementResponding to subpoenas is confusing for mental health professionals. Furthermore, disclosing records when subpoenas are not valid can subject both patients and providers to sanctions. This article describes the various subpoena problems and explains how to protect patient privacy by filing written objections-something that only subpoena recipients are permitted to do.

show abstract

Section: Subpoena Problemsmentioning

confidence: 99%

Section: Subpoena Problemsmentioning

confidence: 99%