Resources for the Mental Health Professional Facing Court

You received a subpoena, asking for confidential records and testimony at a trial with one week’s notice and a full book of patients is already scheduled for next week. How do you respond? How do you survive, ethically, financially, legally? This site is provided as a resource for mental health professionals who willingly or unwillingly find themselves caught in the mire of the legal system.

Maybe you are concerned about how to handle confidential medical records? Whether to provide both parents with information, or whether you can treat a child without one parent’s consent? This site compiles all of the North Carolina statutes including confidentiality statutes, case law related to patient records, as well as links to resources for your own licensure board’s ethical guidelines. In all questions related to court, two questions must be answered: What does NC say about the situation? What does my licensing board’s guidelines say about the situation? This site provides answers and resources for the mental health professional trying to survive the court system.

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Frequently Asked Questions

-Can I be forced to testify?

Any person who receives a subpoena if properly served is required to appear at the time listed on the face of the subpoena. However, if you are asked a question that would require the disclosure of confidential information as protected by the confidentiality statutes then you are not obligated to answer those questions, unless a judge specifically orders you to do so.

-Can the court reimburse me for my time spent testifying in court?

It depends. If you are called as a fact witness, meaning a witness who testifies as to things that he or she heard, or saw, then you are not entitled to expert fees. Under Rule 706 of the Rules of Evidence, however, if the court appoints you as an expert then the court may order compensation “in whatever sum the court may allow.” In civil actions this compensation is paid by the parties in proportion that the court orders. However, either party may be willing, although not obligated under the rules, to compensate for time spent as a fact witness. Talk with the attorney involved as soon as possible about compensation and request that the attorney narrow down, if possible, the window of time that you might testify to limit the amount of time spent in court waiting.

-What if I receive a subpoena for my patient records?

Under NC law, this type of subpoena is generally referred to as a subpoena duces tecum, meaning, a subpoena to appear and bring materials with you. If you are properly served with a subpoena, then the next step is to determine whether the patient will provide informed consent to the release of the records. If so, then the records must be produced. If the patient refuses such consent, then you are obligated to withhold them unless you receive a court order specifically ordering that you do so. Often parties, particularly in custody cases, may file a motion to quash the subpoena or a protective order. At a hearing on either of these motions the court might rule in advance of trial as to whether the records will remain confidential or whether the court will require disclosure.