Mental Health Law & Ethics

Welcome Ms Murphy and thanks for agreeing to an interview. As with all our attorneys who consent to be interviewed we begin with the following disclaimer.

The views expressed by Ms Murphy are general comments not to be considered legal advice. It is not intended to apply to any specific legal dispute that
 a reader may have now or later. Readers are advised to consult with their own attorneys for questions related to specific situations.
 
 Riolo: Our topic is Subpoenas and Court Orders. Arguably few situations encountered by mental health professionals cause as much consternation and anxiety as to receive a subpoena from an attorney for the records of one of  our patients. The general comments offered by experts in such situations state that unless the patient has signed a release we are to attempt to get the subpoena squashed and comply with only valid court orders. Is that essentially your opinion as well?   

Murphy: This is consistent with my opinion, yet it is incomplete.  Subpoenas are always invalid, unless the law expressly provides otherwise which can be the case in situations where, for example, the legislature in a particular state has passed a law saying that an investigative team (such as a child fatality review team) has authority to compel production of even privileged files by subpoena and without court order. I would argue that even this type of overbroad statutory authority should be resisted as unconstitutional but the point is that sometimes, legislatures enact laws that seem to trump the need for a court order.
 
 A subpoena COULD be enough with a waiver from the client -- but I would argue that the waiver must be "knowing, intelligent and voluntary" which means the holder of records should ascertain whether the client is capable of appreciating the nature of the subpoena, understands all the implications and consequences of signing a release and is not under duress or undue  influence -- AND I would want to make sure the client knows all her legal  options including whether there are legal grounds to object entirely, or  insist on a narrow application, etc. It might even be necessary to advise  the client of the potential harm to third and fourth parties -- such as  people about whom the client might have talked during treatment (e.g., a note  might say the client was upset because her mother is dying of AIDS as an  example).

Finally, I do not agree that the issuance of a court order, alone, is enough to justify compliance. In my experiences, many court orders are unlawful -- and even if they're not, it is usually possible to argue that the order is not narrow enough in scope such that it identifies with precision the particular information sought.

I always analyze court orders to therapists using fourth amendment/search warrant standards - even though a court order isn’t always viewed in the same light, many of the existing rules work nicely, not the least of which is the requirement of specificity. This element prevents over-disclosure and in some cases allows the therapist to respond that they have no information falling within the scope of the court’s order. This is not possible when an order asks for the entire client file -- so at a minimum, holders of records should take steps to narrow a valid court order, but even before thinking of narrowing the scope, anyone who receives a subpoena or court order should consult with an attorney to determine whether the law allows the attorney or judge to even SEND the process in the first place.

 Let me explain. Some defense attorneys in criminal cases send subpoenas even when they have absolutely no right to do so - and some judges will send court orders along with those illegal subpoenas -- in which case, the recipient should refuse to comply not based on scope but based on the simple point that neither the accused nor the judge has the power to compel ANY third party to produce files -- much less privileged files.

In a criminal case, the parties include only the government and the accused. The victim is but a witness for the state and in that capacity, she has no constitutional legal relationship with the defendant which means he has no constitutional authority to ask her or her care providers to produce ANY evidence in the case. The accused can seek  "discovery" ONLY from his opponent, the prosecutor. The exception to this rule is that an accused CAN send a subpoena/court order during trial -- literally while the trial ins underway -- but even so, the trial subpoena/court order must be narrowly tailored to identify ONLY that small  piece of evidence the accused needs to protect his fair trial rights. In other words, he still cannot conduct "discovery" even though he has the technical power to send a trial subpoena to a third party once the trial itself is underway.

In sum -- before complying with anything, the holder should first determine whether the client has issued a signed release that was knowing, intelligent and voluntary. Then, the holder should determine whether it is a civil or criminal subpoena -- and if criminal -- determine whether the subpoena is technically lawful by checking to see if it is for discovery or trial. If it is for trial, make sure the accused is not using it to conduct discovery during the trial and in any case, resist if it is at all overbroad.
 
 Even court orders deserve careful scrutiny to determine whether the judge has the authority to issue an order and even if he does, such orders can and should be resisted unless they are narrowly drawn to cover only the smallest amount of information consistent with the legitimate needs of the litigation  (i.e., an issue in dispute and important in the case must be potentially resolvable by disclosure of the target information.

It is also important to ask for a protective order if any sensitive information is released to a judge or attorney. This order should ask that no files leave the courthouse, that they be viewed under protective circumstances -- that all information NOT be publicly divulged without a court order and that the file be returned to the holder at the end of the case. There should also be a liquidated damages clause such that any violation of the order will automatically result in a substantial fine or other sanction.

Riolo: You mentioned that there is an important distinction between court orders in civil cases and criminal cases. Could you elaborate on that point?
 
Murphy: One caveat -- this analysis does not apply to civil cases where the victim/client MIGHT be a party to the case and if so, a court might infer that she waived her rights to confidentiality by initiating the civil  lawsuit and seeking damages for her psychological suffering.

Much like someone who wants compensation for a broken leg in a motor vehicle accident lawsuit and cannot refuse to produce x-rays of the leg to the person he’s suing, a person who wants money for psychological harm can't have it both ways -- however -- there are many courts that have held a "garden variety"  emotional distress claim is not enough to justify disclosure of a privileged therapy file. There has to be more to the claim that makes the counseling file more important in the litigation.

Riolo: If I understand you correctly a criminal defendant/accused enjoys NO  constitutional pretrial right to "discovery" (unlike the parties in civil  cases who enjoy broad discovery rights) This is an important concept and I  am learned something here. But to a laymen it may seem counter intuitive. Could you please elaborate?

Murphy: I think I did above, but let me emphasize -- the US Supreme Court has held that the accused enjoys NO constitutional right to discovery in general and certainly has no such right against third-parties. This is why, in Pennsylvania under the Wilson/Aultman cases, for example, the court there has held that even if the accused can show that important exculpatory evidence exists in a therapist's file, the accused cannot have it - under ANY circumstances. Obviously, if there were a constitutional right to discovery the court could not have rendered such a ruling.

Other states have ruled similarly -- and the point is -- the accused should not in a sense win the right to impose the power of the government, in the form of a subpoena/court order, on private persons as a kind of benefit to having been charged with a crime. The prosecutor/police are obligated to fully investigate cases and are trusted with the ability to uncover inculpatory and exculpatory evidence.

Thus, if a therapy file might contain truly crucial information about a criminal matter, the prosecutor could get a copy -- or refuse to indict a case -- which would then make the file available, to some extent at least, to the accused during trial. This point is well-settled -- there is simply no constitutional right to discovery of private third-party material -- period -- not grocery receipts, book store purchases or privileged files. The accused is entitled to basically the entire file of the prosecutor -- as this is his opponent -- but he cannot snoop around in the private space of private people -- not as a constitutional matter.

Riolo: Let me play devil's advocate or at least show my ignorance of this point of law. Some would argue that an accused and their lawyers should be able to discover if their accuser may have a history of say perhaps making either false accusations or perhaps having memories that are recovered in therapy that were not necessarily based in fact. Would not the accused have a right to have certain information discovered after due process? The difficult question for me has been how balance an accused right to a fair trial on the one hand and going on a fishing expedition and accuse the accuser on the other. I don't know the answer to this. Can you clarify?

Murphy: History of false reporting is rooted in a myth that rape victims  more than other "types" of crime victims are more disposed to lie -- which  is completely false. People lie MUCH more often about theft crimes --  usually for insurance purposes -- and we don't ask for THEIR therapy files -- only rape victims -- only women -- it's rather obvious that this is  unjust. Though I will agree that in every criminal case, there might be  evidence someplace that if the accused could get it, he could make hay with  it at trial -- for example, a victim might talk to her grandmother,  husband - about what happened and she might not get all the facts straight  every time. This is something that could happen in EVERY criminal case --  not unique to rape victims and the simple fact is, there is no way to  guarantee that every accused in every case can interrogate every person in  every victim's life to see if they made an inconsistent statement.

The  point is -- I'll repeat what I said above -- the prosecutor and police  investigate and gather that which they believe is fair to both sides -- and
 the accused gets all of it. This is what the system demands and there is NO  reason to believe that if we allowed the accused to get all victims' therapy  records, somehow, trials would be fairer or innocent men would be freed,  etc -- there is just no data -- indeed, the data is to the contrary -- that
 way too many victims never report because they suffer gratuitous harm at the  hands of defense attorneys who engage in fishing expeditions and achieve  what I call "victory by intimidation" -- forcing victims to choose between  justice and healing. This is an outrage about which few therapists ever  take a stand, sadly.
 
Riolo: I fully agree with you that it's far more likely that someone would lie about say insurance fraud or income tax evasion than rape and we don't dig into therapy records for tax evasion. However I should have been clearer. Some time ago I did a series of interviews with national known mental health professionals on the subject of Recovered Memories

While I am sure there are diverse opinions the experts including Richard McNally of Harvard and others suggested that in some cases the memories of sexual molestation can actually be distortions as the result of questionable therapy techniques used by some practitioners.  In cases of allegations of sexual abuse based on recovered memories sometimes with little corroborating evidence would the treatment records be relevant?

Murphy:  As for the traumatic memory issue -- if the prosecutor is relying on the revelation of old memories and needs to explain the delay either to persuade the jury re: the credibility of the victim and/or to get around the statute of limitations problem by arguing that the nature of the trauma caused the information to be unavailable earlier, then mental health records could be relevant -- but the point remains that this information would have been obtained by the prosecutor/state during its investigation and in such a case, would be available to the accused under traditional discovery rules that apply to requests for evidence in the "possession, custody or control" of the prosecution. 

This has nothing to do with defense requests for information in the exclusive custody of a private third-party and my point about false allegations is that we all need to notice and be critical of the fact that requests for mental health records are disproportionately sought -- and disproportionately allowed by judges -- in sex crimes cases where the victim is female.  This is unjust and irrational.

Riolo: In closing do you have any final remarks?

Murphy: One additional thought on the matter of therapy records - Unfortunately, some plaintiffs' attorneys, when representing people who have had mental health treatment, ask their client to sign full waivers because giving up entire files is the cheapest option.  In other words, plaintiff attorneys usually work off contingencies, which means, the more they do to protect patient privacy in response to requests for access during civil litigation, the more it cuts against their profit margin.  This is, in a sense, an economic incentive to push victims to over disclose irrelevant and highly personal information -- often to an individual who has already caused harm to the client

This is a pet peeve of mine; one that I confront by urging folks who refer civil cases to lawyers to think carefully about who they send the case to -- don't just refer a potential civil lawsuit to the lawyer from a firm that claims to do "victims' rights" work -- refer the case to a lawyer who will treat the victim’s privacy rights with due respect -- and literally dip into their profit margin to protect the client from needless intrusion into treatment records.  Too often, the lawyers who claim to care about victims or even specialize in "victims' rights" do not handle this issue responsibly because they put their financial interests above the client's well-being. 

I also urge caregivers to be mindful of the fact that some law firms claiming to care about victims and people who have suffered also do insurance defense work in the same firm.  This is a clear conflict of interest in my opinion and cases should not be referred to such law firms.

In one case with which I am familiar, a firm claiming to specialize in representing victims of crime, also represents a large insurance defense firm and in that capacity pushed a case to an appellate court for the purpose of creating a judicial decision that significantly undermined the ability of victims to successfully sue agencies responsible for the well-being of children.  This is not uncommon and one of the things I like to teach as an activist is that potential sources of referrals to lawyers, such as therapists and doctors, etc -- have to be mindful of the fact that the lawyer to whom the case is sent should NOT be someone who also represents the insurance industry -- and should NOT be one whose primary goal is a quick profit.

Riolo:  Ms Murphy, this has bee exceeding helpful and informative. I thank you. In our next part we will discuss mandated reporting of child abuse.

Readers’ comments can directed to Johnr@psychjourney.com or a recorded phone message can be left at (214) 615-6044 ex. 8460. Note Long distance charged may apply.

Footnotes: