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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 38910
Experience:  Retired (mostly)
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in process of divorce short version I have a psychologist letter

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in process of divorce short version I have a psychologist letter who I have been seeing for past couple of years saying I am fit to parent our child other side has subpoenaed doctors notes.

Is this legal, where does HIPPA come in with this, wife is not authorized to talk with my therapist never signed the form, she has on a few times attended sessions with me when I gave my therapist permission on those specific days.

My lawyer has filed some motion to "quash" there subpoena but have not had an opportunity talk with my attorney.

Thanks,
Gene
Mental health professional notes can be subpoenaed as part of a legal process, where the notes are not privileged by an adverse party. You can object to (i.e., move to quash) the production of the notes to the extent that they were part of any session in which your spouse did not participate. For the joint sessions, however, you have completely waived your right to assert any therapist-client privilege.

Concerning the letter that you have, without the therapist on the witness stand, the letter is inadmissible hearsay, because it reflects the opinion of an expert, and in order to bring the letter within the scope of the hearsay exception, the expert must be available to testify to the findings and conclusions in the letter as if it were a report.

Concerning HIPAA, the Dept. of Health and Human Services Privacy Rule (45 Code Fed. Regs. Part 164) permits a person to obtain their own notes, except where a psychotherapist believes that the notes would create a substantial danger to the person or others. But, HIPAA absolutely permits the production of medical and psychotherapy records via a civil subpoena.

The judge will probably receive the notes, review them in chambers and then make a ruling on what to allow and what to exclude.

Please let me know if I can be of further assistance.
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