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I am a Licensed Mental Health Counselor and I have receive a…

I am a Licensed...

I am a Licensed Mental Health Counselor and I have receive a subpoena by my client's lawyers in a family counseling case where I am the counselor to all parties to I have to go?

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state the subpoena was issued in?

Massachusetts

Lawyer's Assistant: Has anything been filed or reported?

I did provide my client with a letter stating what dates counseling occurred in who was in the session

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

In the letter it made recommendations such a so in so should receive counseling weekly and so and so should receive counseling every other week but mom does not agreee I requested a more legalized plan be in place to insure couseling was consistent

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Answered in 16 minutes by:
3/10/2018
Attorney Wendy
Category: Legal
Satisfied Customers: 1,193
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I am an attorney. I am currently working on a response to your question and will have that to you shortly.

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Customer reply replied 4 months ago
Thank you

The short answer is that you cannot ignore or simply not appear when subpoenaed to do so. It sounds from your question like you are being subpoenaed in a case but it was not clear if this was to testify at a deposition, to testify at a court hearing or just to produce documents. In any of those events, you need to take some steps to ensure both that you do not totally fail to comply with the subpoena and that HIPAA requirements have been satisfied. Mental health counselors are covered entities under HIPAA and must comply with that law to protect patient privacy. Thus, when subpoenaed about a patient or patient's records, you must ascertain whether the patient was provided notice of the subpoena (which appears should be the case as it is the patient's/client's lawyer who issued the subpoena). This notice requirement is so that the patient or client has the opportunity to object to what is being requested by the subpoena. As the patient/client's own attorney issued it, you wouldn't expect any objection. But since it sounds as if you are conducting counseling with the entire family, other family members who are also clients by way of participating in these counseling sessions should also receive notice of the subpoena so they have the opportunity to object to it as well. So, the next step is if this is a subpoena to appear and testify somewhere that you request from the court where the subpoena was issued that a protective order be put in place to protect the patient/client information from public dissemination. You would do this by filing a document entitled motion for protective order and outlining that you received the subpoena but due to the protected health information sought you are requesting the court to issue an order permitting disclosure of that information but subject to a protective order to ensure the information is not provided to anyone not needing access to it for this case. It may be worthwhile on this point simply to call the client's lawyer and speak to that lawyer about drafting a protective order that you and the client and the client's participating family members can sign off on for the court to then approve as a consent order or agreement stating they all consent to your testimony and/or document disclosures subject to certain protections to keep that information out of the court's public record. This protective order protects your client and also protects you from any later claim of a HIPAA violation. Sometimes when speaking to the attorney who issued the subpoena you can also find an agreement that prevents your having to appear, but that will depend on whether the attorney needs your actual testimony to pursue an aspect of the client's case. I hope this helps.

If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is ​for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

Attorney Wendy
Category: Legal
Satisfied Customers: 1,193
Experience: Member at Keefer & Keefer LLC
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