Published in the Union Leader (11/7/2016)
Q: I am a licensed mental health provider in New Hampshire. If an attorney serves me with a subpoena to turn over treatment records or testify, what do I do?
A: It is important that you not ignore the subpoena. However, you are not required to turn over treatment records or testify in response to a subpoena issued in conjunction with a state court action. New Hampshire law recognizes that communications between a mental health practitioner and a client, as well as records maintained by the practitioner, are privileged.
While there are some exceptions, such as reporting laws, the protections that are afforded to this information generally means that the information may not be released by the practitioner unless the client has a executed a release or there is a valid court order.
A subpoena is a formal document that orders the named individual to appear at a specified location and time to produce documents and/or provide testimony. While a properly served subpoena triggers an obligation to provide some sort of response, that response will necessarily be limited unless there is a release or court order.
So what is the next step upon receiving a subpoena? First, call the client and determine whether the client will execute a release. If the client will execute a release, you may proceed and comply fully with the subpoena, bearing in mind any other legal and/or ethical considerations that may be relevant.
If the client will not execute a release, contact the attorney who issued the subpoena and notify the attorney of your situation. The attorney may be willing to withdraw the subpoena, therefore ending your obligations.
If the attorney is unwilling to do so, you must arrive at the location on the subpoena at the designated date and time, however you should not provide records or information in the form of testimony unless the court orders you to do so. If you are at a court house, the judge’s verbal order to provide records or provide testimony is sufficient.
Interestingly, the New Hampshire Supreme Court recently ruled in New Hampshire Board of Psychologists v. Alethia E. Young, Ph.D. (N.H., Sept. 20, 2016), that a subpoena issued by the Board of Psychologists while it was conducting an investigation of a licensee must be handled in the same manner, despite a licensee’s duty to cooperate with the investigation.
Any mental health practitioner who is licensed in New Hampshire and under investigation would therefore be wise to follow such safeguards.
Andrea Daly can be reached at andrea.daly@mclane.com.
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.