Help, I Just Received a Subpoena
By Leslie S. Tsukroff, LCSW
Chair of the NASW-NJ Ethics Committee Member
Don’t panic. Social Workers must understand what a subpoena is and what it isn’t. By understanding the rules associated with subpoenas, Social Workers will be able to help clients protect their best interests and Social Workers will be able to respond in an ethical and legal manner.
A subpoena is a legally enforceable method to command and compel people to provide evidence or testimony. Most often, subpoenas are issued by attorneys. Subpoenas differ from court orders. A court order, typically issued by a judge, is a legal decision that demands that something be done or not done. It is important that Social Workers distinguish between the two.
Social Workers will want to protect a client’s confidentiality while cooperating to the extent legally required by the subpoena. The NASW Code of Ethics, Section 1.07 (c) Privacy and Confidentiality states: “in all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.”
Before responding to a subpoena, a Social Worker should refer to the NASW Code of Ethics, Federal HIPAA Privacy Regulations, New Jersey State Social Worker Privilege Laws, and the Social Worker’s agency’s policies. Social Workers should also take into consideration the clients right to self-determination.
The type of subpoena, whether it must be obeyed, whether the client has provided a valid written release of information and whether the original records must be provided are some of the issues that need to be considered.
A Social Worker can contest the validity of the subpoena, but because a subpoena is a mandate issued in the name of the court, Social Workers should never ignore or disobey a subpoena.
There are two types of subpoenas:
Ad Testificandum: an order compelling attendance of a witness to provide testimony at a deposition or a trial and
Duces tecum: an order compelling the production of evidence on the person who is the custodian and not always the owner of documents.
According to an NASW lunchtime series presentation by the Legal Defense Fund (LDF), entitled “Social Workers and Subpoenas”, the Social Worker should wait for a court order before disclosing any information, unless the subpoena is accompanied by a valid consent form signed by the client, in the case where there is an imminent threat of harm or as required by law (mandatory child abuse reporting).
NASW’s LDF holds that without valid client consent, Social Workers “have a duty to claim privilege on behalf of their clients before releasing any information” (February 11, 2009, Lunchtime Series, NASW).
Contrary to the NASW Code of Ethics, the HIPAA Privacy Rule “allows Social Workers to release information based on a subpoena alone (without a court order or client permission) if certain actions are taken by the Social Worker or if the party that is seeking the disclosure of records provides adequate assurances to the Social Worker that proper HIPAA procedures have been followed” (February 11, 2009, Lunchtime Series, NASW).
According to the LDF Lunchtime Series (February 11, 2009), if a Social Worker determines that they will obey the subpoena and release confidential client information without a valid consent (under HIPAA), they have 2 options:
The preparer of the subpoena or the Social Worker must “make reasonable efforts to notify the client and give them an opportunity to raise objections in court.”
The preparer of the subpoena or the Social Worker must “make reasonable efforts to obtain a ‘qualified protective order’ from the court that would limit the information disclosed to use for this one proceeding only, and require the return or destruction of the client information at the end of the litigation.”
According to the NASW’s LDF, General Counsel Law Note, issued in 1996, entitled, Social Workers and Subpoenas, “HIPAA Privacy Rule indicates that practitioners can voluntarily adhere to a higher standard, if required to do so by professional ethics;” therefore, Social Workers can use the Code of Ethics as a defense against disclosure of privileged material.
So, what should Social Workers do if they receive a subpoena?
Don’t just hand over what is being asked for. The Social Worker may inadvertently release privileged material.
Contact the client to determine that the client has, in fact, consented to the release of the requested information.
Obtain a copy of the signed Authorization to Release Information and confirm that the authorization is valid and procedurally proper.
Speak with the client to ensure that they understand what information is to be released, the potential consequences of the disclosure, and that they are prepared for this information to be disclosed in court.
If the subpoena is not accompanied by a valid authorization to release information, the client refuses to give consent, or the material requested is privileged, the Social Worker is advised to draft a written document to the sender of the subpoena and indicate his/her reasons for non-compliance. A copy of this letter should be sent to the court.
If the client refuses to give consent, the Social Worker may find it helpful to speak with the client’s attorney. The client’s attorney may be able to “quash”, or block the subpoena. REMEMBER-- always obtain written authorization to speak with the client’s attorney.
If the client’s attorney is unwilling to “quash” the subpoena, the Social Worker should consider retaining his/her own counsel.
The Social Worker is cautioned against contacting the issuing attorney if the client has not consented to the release of information.
The Social Worker should document in the client file the legal and ethical mandates for either withholding or releasing the requested information. All activity regarding the response to the subpoena should be documented in the client’s file as well.
In order to comply with both the NASW Code of Ethics and HIPAA, it is advised that the Social Worker wait for a court order.
When in doubt, the Social Worker should consult the NASW Code of Ethics, seek consultation from a competent attorney, and consult with a knowledgeable colleague.
It is imperative that the Social Worker only release the information covered in the scope of the subpoena; therefore, the Social Worker should remove any information that does not pertain to the client named in the subpoena.
It is recommended that when a subpoena is received, the Social Worker should inquire as to who will incur the cost of copying and preparing the documentation to be submitted. Social Workers should be aware that they are entitled to charge up to their hourly rate for the preparation of documents. Similarly, Social Workers are permitted to charge for copying costs.
Audio and transcript from original Lunchtime Series available to NASW members at http://socialworkers.org. Click on Lunchtime Series, view all courses. See Previous Courses. Scroll to February 11, 2009. You will have to provide your membership number and password to enter this section of the site.
· Law Note Series available at http://socialworkers.org/ldf. Click on Law notes. “Social Workers and Subpoenas”, Carolyn I. Polowy, JD and Joel Gilbertson, Law Clerk Published: January 1997 © NASW.
· NASW National offers Ethics consultations Tuesdays from 10:00am - 1:00pm and Thursdays from 1:00pm - 4:00pm. Contact NASW National @ (800) 638-8799 ext. 231.