Alain Montgomery, JD, Staff Attorney
The Therapist
January/February 2016
Updated November, 2022 by Alain Montgomery, JD (CAMFT Staff Attorney) ​

Being served a subpoena to produce a patient record, to testify in court at a trial or hearing, or to appear at a deposition can be unsettling. The thought of handing over a patient file, or disclosing what a patient shared in confidence, feels like the ultimate betrayal. The uninvited discomfort, resistance, and anxiety that may accompany the subpoena are quite understandable. However, keep in mind that there is a legal obligation to respond to a properly served subpoena, whether it requests the production of patient records, commands your appearance to testify as a witness, or asks you to appear at a deposition. The subpoena should not be ignored or dismissed. Understanding your role relative to the legal proceeding at hand will help you confidently navigate your way through the process of responding to a subpoena no matter what the request. This article reviews topics relevant to responding to a subpoena and also identifies specific sections in the CAMFT Code of Ethics that provide guidelines for therapists who testify in the capacity as either a percipient or expert witness.

Privilege
It is impossible to discuss the process of how to respond to a subpoena without first reviewing the matter of privilege. Privilege is a rule of evidence that refers to the right of the holder of the privilege to refuse to disclose, and to prevent someone else from disclosing, confidential communications in a legal proceeding.

Under the psychotherapist-patient privilege, the patient as the holder of the privilege has the right to allow his or her psychotherapist to disclose—or to prevent his or her psychotherapist from disclosing—confidential communications and clinical information in a court proceeding. A patient waives the protection of the psychotherapist-patient privilege when the patient authorizes his or her therapist to disclose confidential communications related to treatment. Alternatively, a patient invokes privilege when the patient refuses to allow his or her therapist to release information. When a patient invokes privilege, a therapist cannot disclose protected information unless ordered to do so by a court.

If an adult patient is mentally incompetent, then the holder of the privilege for that patient is the patient’s conservator or legal guardian.¹ When two or more individuals are joint holders of the privilege, waiver of the privilege by one patient of the treatment unit does not affect the other patient’s right to invoke privilege. For example, if you are served a subpoena for the records of a couple, waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege.² Thus, unless both members of the couple waive privilege their conjoint record cannot lawfully be released and privilege must be asserted on their behalf.

Thus, when served a subpoena, your first course of action is to ascertain from the patient(s)—or one who holds privilege for the patient—if the patient(s) waives or invokes privilege. If the patient(s) is unavailable, or cannot be contacted, privilege should be asserted on behalf of the patient(s).

Minors and Privilege
When subpoenaed for information about a minor patient, a therapist must always assert privilege on behalf of the minor and not release information unless the minor—or one who holds privilege for the minor—waives privilege for the minor. While parents have the legal authority to make health care decisions for their children, that authority does not automatically give the parent the right to make a decision regarding privilege. For example, parents have the legal authority to make decisions on behalf of their children for such things as the right to consent for treatment and the right to authorize a release of their child’s health care information. However, when a child’s information is sought by a subpoena, a parent does not, presumptively, have the right to waive or invoke privilege on behalf of his or her child. Only the minor’s attorney, or the minor’s court-appointed guardian ad litem can make the decision to waive or invoke privilege on behalf of the minor. A guardian ad litem is a person appointed by the court to stand in the shoes of a minor in a court proceeding in which the minor has an interest. A parent holds privilege only if the parent has been appointed by the court to act as the minor’s guardian ad litem. Hence, if the minor does not have an attorney or guardian ad litem, privilege must be asserted on behalf of the minor and the court will make the determination regarding privilege.³

The circumstances under which a minor can waive or invoke privilege on his or her own behalf are narrow under California law. For example, in a dependency case where a minor has been neglected, abused, or abandoned by a parent or guardian, and becomes a dependent of the court, the court has the authority to make decisions about parental rights, family reunification, foster care, child placement, family treatment and services, or adoption. In these cases, California law presumes that a child over 12 years is of sufficient age and maturity to invoke and waive the psychotherapist-patient privilege. Thus, in a dependency action, if a minor invokes the psychotherapist-patient privilege his or her counsel may not waive it; but, if the minor’s counsel invokes the psychotherapist-patient privilege, the minor may waive it.⁴ The CAMFT Code of Ethics serves as a valuable resource by reminding therapists to confirm who holds privilege for the minor before releasing information.⁵

Exceptions to Privilege
There are a number of exceptions to the psychotherapist-patient privilege that prohibit the patient from invoking the psychotherapist-patient privilege as a way to prevent confidential information from being admitted into a legal proceeding. For example, when a patient presents his or her mental or emotional condition as an issue, the patient cannot use the protection of the psychotherapist-patient privilege to prevent his or her therapist from disclosing information which may be relevant to patient’s diagnosis and claim.⁶ Also, when a patient brings a legal action against his or her therapist for professional negligence the law does not allow the patient to use the protection of the psychotherapist-patient privilege to prevent the therapist from disclosing confidential information which may be relevant and necessary to the therapist’s defense.⁷

Although a therapist may believe an exception to the psychotherapist-patient privilege exists, it is not up to the therapist to make that determination. The therapist should still invoke the psychotherapist-privilege unless the therapist has obtained authorization from the patient to disclose the requested information, or a court order from the judge compelling disclosure of the information.

Understanding the fundamentals of the psychotherapist-privilege creates the framework for knowing your role relative to the legal proceeding in which you may have to disclose confidential communications pursuant to a subpoena.

The Subpoena for the Production of Documents
When served a subpoena for records, inform your patient, or the patient’s representative, that you have received a subpoena requesting a copy of his or her record. Ascertain from the patient or representative whether the patient waives or invokes privilege. If the patient waives privilege, get the patient’s waiver in writing and comply with the subpoena.

If the patient invokes privilege, then privilege must be asserted on behalf of the patient. In this instance, notify the subpoenaing party in writing of your objection to the production of records and identify the specific grounds on which the objection is based. The appropriate objection to make is the “psychotherapist-patient privilege.” Accompanying the subpoena may be a document with a section entitled, “Objection by Non-Party to Production of Records.” This document allows a non-party, such as a treating therapist, to object to the production of records by checking a box and indicating the specific grounds on which the objection is based.8 Otherwise, you may object by sending a letter to the subpoenaing party on your letterhead which states that you object to the production of the records requested based on the psychotherapist-patient privilege.

The Subpoena to Personally Appear at a Trial or Hearing
Having to appear as a witness is more onerous and is a little more daunting than simply locating and copying a record. When validly served a subpoena that commands your appearance at a trial or a hearing, you have a legal obligation to respond. Thus, you must appear at the specified location on the date and time designated on the subpoena. It is important to emphasize that you do not need the consent of your patient to appear at the legal proceeding. However, you will need a waiver of the privilege from your patient, or the patient’s representative, to disclose the patient’s protected information when testifying in court.

If your patient invokes privilege, and does not want you to disclose any protected information while testifying, then you will have to assert privilege on behalf of your patient. To assert privilege when testifying as a witness, in response to the question asked, simply state that the question asks for information that is protected by the psychotherapist-patient privilege. At that time, the judge may order you to answer the question(s) or may dismiss you as a witness.

If you are subject to an order to answer the question(s), you must answer the question(s).

The Subpoena to Appear at a Deposition
A deposition allows the parties to a lawsuit to obtain facts from one another and from non-party witnesses before trial in order to gain a better understanding of the case. At a deposition, the individual deposed is asked to orally respond to a series of questions.

Similar to a subpoena to personally appear at a hearing, you must appear at the specified location on the date and time designated on the subpoena. Although you must appear, you cannot answer questions relating to your patient at the deposition unless your patient (or patient’s representative) has waived privilege or you have been compelled by a court order to do so.

A deposition usually occurs at an attorney’s office, takes place under oath, and is recorded so a transcript can be made. Inaccurate statements made at the deposition can give rise to an allegation of perjury and impeachment at trial of the individual deposed. CAMFT recommends that you contact your malpractice carrier to determine whether or not you should have legal representation at the deposition to ensure you remain within the bounds of the law when responding to questions.

The Subpoena for the Production of Documents in a Criminal or Juvenile Hearing
The method for responding to a subpoena for criminal or juvenile records differs from the manner in which one responds to a civil subpoena for records. Unlike a civil subpoena where the custodian may either release or withhold the records based on the patient’s decision regarding privilege, the criminal subpoena actually instructs the person subpoenaed to deliver or return the records to the court. As per the instructions directly on the subpoena, the custodian is required to do the following:

1. Put the records into a sealed envelope or wrapper and list the following information on the sealed wrapper: the case title, case number, name of the person sending the records, and the date of the subpoena;
2. Place the first sealed envelope or wrapper into a second sealed envelope or wrapper and address it to the Clerk of the Court;
3. Complete an affidavit which, among other attestations, states that the person subpoenaed is the custodian of the records and that the copy of the records are a true copy of all the records described in the subpoena;
4. Finally, mail a copy only of the affidavit to the subpoenaing party.⁹

The party whose records are subpoenaed will have the opportunity to raise objections and claims of privilege against disclosure of the information at an in camera hearing (a private hearing where a Judge reviews confidential and sensitive information to determine what, if any, information may be used by a party or made public.)¹⁰ Thus, the party who subpoenaed the record will not obtain access to the record until a judicial determination is made that the party is legally entitled to receive it.

Information about Serving as a Witness
It is important to understand the distinction between the role and scope of testimony offered by a treating therapist who testifies as a percipient witness and the role of a retained expert. The role of a treating therapist subpoenaed to testify as a witness is usually to offer testimony as a percipient witness or a treating-expert witness.

A percipient witness testifies about things he or she actually perceived. For example, a therapist called to testify as a percipient witness will read from the clinical record. A percipient witness is entitled to reimbursement at a rate of $35 per day and travel expenses.¹¹

A treating-expert witness is called to express facts or render an opinion regarding his or her diagnosis or prognosis including the reasons for a particular treatment decision. A treating- expert witness is entitled to his or her reasonable and customary hourly fee or a daily fee if called to be present or to testify all day.¹²

A retained expert is hired by a party, or retained by the Court, to formulate an opinion based on an objective and forensic analysis of the facts. A retained expert has specialized knowledge of a particular subject matter and relies on his/her expertise to render an opinion that directly relates to the legal issues at hand. The retained expert relies on information contained in health care records, legal documents, other collateral information, and interviews that may involve the patient or other interested parties. The retained expert’s duty is to the trier of fact (i.e., the judge or the jury) and the disclosures made by a retained expert are governed by the attorney-client privilege.  

Since their roles, scope of testimony, and the type of information relied upon are different, serving in the capacity as both a percipient witness and a retained expert could give rise to an ethical conflict of interest and dual role. The CAMFT Code of Ethics provides guidance to marriage and family therapists who engage with the legal system by serving either as a witness or a retained forensic expert. The relevant sections of the CAMFT Code of Ethics are as follows:  

10.3 CONFLICTING ROLES: Whenever possible, marriage and family therapists avoid performing conflicting roles in legal proceedings and disclose any potential conflicts to prospective clients/patients, to the courts, or to others as appropriate. At the outset of the service to be provided and as changes occur, marriage and family therapists clarify role expectations, limitations, conflicts, and the extent of confidentiality to pre-existing or prospective clients, to the courts, or to others as appropriate.  

10.4 DUAL ROLES: Marriage and family therapists avoid providing both court evaluations and treatment concurrently or sequentially for the same clients/patients or treatment units in legal proceedings such as child custody, visitation, dependency, or guardianship proceedings, unless otherwise required by law or initially appointed pursuant to court order. 

10.8 CUSTODY EVALUATORS: Marriage and family therapists who are custody evaluators (private or court-based) or special masters provide such services only if they meet the requirements established by relevant ethical standards, guidelines, laws, regulations, and rules of court. 

10.9 CONSEQUENCES OF CHANGES IN THERAPIST ROLES: Marriage and family therapists inform the client/patient or the treatment unit of any potential consequences of therapist-client/patient role changes. Such role changes include, but are not limited to: child’s therapist, family’s therapist, couple’s therapist, individual’s therapist, mediator, and special master.  

10.10 FAMILIARITY WITH JUDICIAL AND ADMINISTRATIVE RULES: Marriage and family therapists, when assuming forensic roles, are or become familiar with the judicial and administrative rules governing their roles.  

The CAMFT Code of Ethics encourages therapists to know their responsibilities under the law and to act within their scope in whatever role is assumed. Remember, the duties and testimony offered by a forensic expert and a percipient witness are different. A treating clinician provides testimony regarding the care that has been provided in a manner that protects and supports the patient. A retained expert provides testimony of a more evaluative nature in a manner that is detached and neutral to assist the judge or jury. Providing a forensic analysis without having relevant forensic and clinical experience may problematic. Thus, when asked to render an opinion related to the legal matter at hand, remember the limitations defined by your role.  

Conclusion

So, when you are served a subpoena remember your call to action. First, carefully read the subpoena. Second, take directive from your patient or your patient’s legal representative and simply abide by what your patient asks you to do; or, ultimately what the court orders you to do. Receiving a subpoena can be unnerving. Sometimes the best way to overcome a sense of anxiety about something is to expose yourself to it. So, when you are served a subpoena have a sense of curiosity about what it is asking for and what the instructions are. All the information you need is there. Take a moment to reflect on your role relative to the legal proceeding at hand and recall the duties you owe to your patient.  

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Endnotes

¹ California Evidence Code, Sections 1013 and 1014.  

² California Evidence Code, Section 912(b).   

³ In re Daniel C.H., (1990) 220 Cal. App 3d. 814.   

⁴ California Welfare and Institutions Code, Sections 300 and 317(e) and (f).  

⁵ CAMFT Code of Ethics, Section 10.6 MINORS AND PRIVILEGE: Marriage and family therapists determine who holds the psychotherapist-patient privilege on behalf of minor clients/patients prior to releasing information or testifying.  

⁶ California Evidence Code Section 1016.  

⁷ California Evidence Code Section 1020.  

⁸ California Code of Civil Procedure, Sections 1985.3 & 1985.6; California Judicial Council Form SUBP-025  

⁹ California Evidence Code, Section 1561. Instructions on Judicial Council of California. Form CR-125/JV-525; California Penal Code, Section 1326(b); California Evidence Code, Section 1560(b).  

¹⁰ Black’s Law Online Legal Dictionary 2nd Ed.  

¹¹ California Code of Civil Procedure §2034.430(b) and California Government Code §68093   

¹² California Code of Civil Procedure §2034.430(b).