Practice long enough, and you will almost certainly have to deal with subpoenas. That word, “subpoena,” can be terrifying to many therapists. This is especially true when you still remember the horror stories you heard in graduate school about clinicians who didn’t protect their clients’ confidentiality. But don’t fear: subpoenas aren’t as scary as they may seem. Hopefully this article will give you a little background about what subpoenas are and what you should do when one shows up at your door.
What is a subpoena?
A subpoena is part of the fact-finding process in a lawsuit. While there are different procedural tools litigants use to get information from one another, a subpoena is the primary way to get information from third parties. It can require you to produce documents, show up to testify, or both. Also, a subpoena doesn’t require a judge’s review and signature. This will become important later.
Can I just ignore a subpoena?
It’s not a good idea. There’s a three-step process that will occur in Oklahoma if you don’t respond. First, the attorney who issued the subpoena will go to a judge and ask them to enter an order compelling you to respond. If you still don’t respond, the attorney may ask that you be held in contempt of court. This can result in monetary penalties or even a brief stint in jail. If you still fail to respond, the judge may issue a bench warrant. While it’s rare that a sheriff’s deputy will track you down to arrest you, a bench warrant does mean that any time you get pulled over for speeding, the officer may check your records for warrants and you may find yourself carted off to the county jail and given a new orange jumpsuit.
Should you just comply with a subpoena?
It may seem counterintuitive, but you absolutely shouldn’t respond immediately. Mental health professional are subject to a number of laws that govern our practice, the most important here being the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA generally requires that you protect the privacy of your clients. As part of this, it has very specific requirements for when you can and cannot release client information to third-parties. In many cases, a basic subpoena under Oklahoma law isn’t going to meet HIPAA’s requirements. With penalties ranging from hundreds of dollars to several million, as well as potential jail time depending on the violation, running afoul of HIPAA is something you should avoid. Because of this, you need to make sure that the law is being complied with before disclosing client information.
So what should you do?
The first thing you should do is make note of how you were served and when. Subpoenas can be served a number of ways, including having a sheriff or process server hand-deliver it or by sending it certified mail to your home. This information is important for being able to determine if the subpoena is proper. You should also docket the deadline for responding to the subpoena to ensure that you don’t miss it.
The next step is probably the most important: immediately contact an attorney who understands HIPAA’s requirements. An attorney who knows HIPAA can tell you if the subpoena is sufficient and can explain your rights and obligations. I can’t stress this part enough: do not wait. There are specific timelines attached to responding to a subpoena and if you miss them, you can find yourself in trouble. The longer you wait, the more difficult it may be for an attorney to respond within the required timelines.
Jason Kreth is both a licensed attorney with over 20 years of Oklahoma legal experience and a mental health clinician. Through his years of experience, he has helped numerous clients navigate the waters of subpoena compliance. If you’ve been served and need some guidance, or need legal services for your mental practice, generally, don’t hesitate to reach out by clicking this link.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every situation is different, so consult a licensed attorney about your specific circumstances. Do not send confidential information through this website or by email until an attorney-client relationship has been established.