by Floyd L. Jennings, Ph.D.
Maintaining Confidentiality: Sometimes it seems it isn’t “worth it”!
We all know we have a duty to maintain confidentiality – by statute (Tex. Health & Safety Code Chapter 611), by our Board rules, and by any principle that relies upon trust as an ingredient in the therapeutic relationship.
Sometimes, just doing the right thing is (a) hard to divine, and (b) difficult to carry out. Consider the following: You agree to treat a high-profile couple who have a tumultuous relationship, even an explosive relationship, with allegations on both sides of infidelity, drug use, and violence. You have only a few sessions with them and they are in the midst of a divorce – employing equally high profile and well-known legal counsel. As might be expected, you get a subpoena for her records – from his attorney. What do you do? You know that the information in your records is unequivocally confidential, not to say that it might also be less than complimentary to both parties. You want to follow the rules, but what are they?
Thinking this through, you do all the right things:
You call your client/patient and their attorney and say, “Look, I have this subpoena, if you don’t want information released, you had better do something…” But, nothing happens.
Your lawyer calls the attorney for the husband and advises that the information that you have is confidential; it might be privileged and requests a court order. The attorney blusters and states (wrongly) “A subpoena is a court order…I’ll see you in court.” In fact, you have the right under the rules of evidence to raise the issue of privilege.
Trying to minimize costs, and after consultation with counsel, you hand carry a letter to the court stating the foregoing and request a court order – because, in the absence of such an order, your client could claim you released information improperly. This, however, was not a Motion to Quash or a Motion for Instructions.
Still getting no response, you call the court and find that the lawyer in question is present in the courtroom. You ask the coordinator if the judge is ordering you to release the information – and hear in the background the lawyer berating the court staff and instructing them to demand that you release the requested information solely upon the basis of the subpoena
Trying to avoid spending days in court, at no fee – only not to be called (which would be the penalty the lawyer would exact if you are less than cooperative) – you submit the information with a cover letter in which you state that you were advised by court staff that the judge is ordering you to release the information. Again, in fact, you have no stake in whether the information is released or not, but simply to ensure that you don’t get a complaint for having released it improperly.
The lessons learned
The first lesson is that some attorneys bluster and berate as a tactic when the law is not especially on their side. In this scenario, the lawyer actually intimidated the court. I, as the provider, did not receive a court order either in writing or orally in open court.
The problem is that sometimes doing the right thing just isn’t “worth it” – for it would have been possible to have filed a Motion for Instructions with the court stating that the information was confidential and might be privileged, and requesting either (a) a court order to release the information, or (b) instructions to submit the material in camera so that the court could decide if the information was relevant, or (c) quashing the subpoena. But, to file such would have been costly in money and time. Moreover, all that would have been gained would have been some greater modicum of comfort that I, the provider, was protected.
So the second lesson is that compromise – while discomforting – is often necessary in the real world.
Hello, everyone. Recently, Cele asked me if I would “do a column” reflecting on ethical issues as effecting clinical practice. I agreed, and so this first piece. However, in the future, I would prefer to construct answers to real-life questions or comment about dilemmas that every clinician faces…So, if you would, please send me your questions, firstname.lastname@example.org.