6/17/2019
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A Lawyer
Contacted Me-
Now What?
Practical and
Ethical Skills
Ashley Milspaw, PsyD
Steven Cohen, PhD
Rachael Baturin, MPH, JD
Overview
Practical and Ethical
Considerations Related to Receipt
of Subpoena & Court Order
Practical and Ethical
Considerations When Testifying in
Court
Mock Testimony
HOW TO RESPOND TO A SUBPOENA AND
COURT ORDER
Practical and Ethical Considerations
Ethical
Considerations
When Responding to a
Subpoena or Court Order
Duty To Protect Confidentiality
PA Code of Ethics
Principle 5 Confidentiality
APA Code of Ethics
Section 4.01 Maintaining Confidentiality
Section 4.05 Disclosures
PA Code of
Ethics-
Principle 5
Confidentiality
(a) Psychologists shall safeguard the confidentiality of
information about an individual that has been obtained in
the course of teaching, practice or investigation.
Psychologists may not, without the written consent of their
clients or the client’s authorized legal representative, or
the client’s guardian by order as a result of incompetency
proceedings, be examined in a civil or criminal action as to
information acquired in the course of their professional
service on behalf of the client. Information may be
revealed with the consent of the clients affected only after
full disclosure to them and after their authorization.
Psychologists shall exercise reasonable care to prevent
their employes, associates and others whose services are
utilized by them from disclosing or using information about
the client.
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APA Code of
Ethics- Section
4.01
Maintaining
Confidentiality
Psychologists have a primary obligation and take
reasonable precautions to protect confidential information
obtained through or stored in any medium, recognizing that
the extent and limits of confidentiality may be regulated
by law or established by institutional rules or professional
or scientific relationship.
APA Code of
Ethics Section
4.05
Disclosures
(a) Psychologists may disclose confidential
information with the appropriate consent
of the organizational client, the individual
client/patient, or another legally
authorized person on behalf of the
client/patient unless prohibited by law.
(b) Psychologists disclose confidential
information without the consent of the
individual only as mandated by law, or
where permitted by law for a valid
purpose such as to (1) provide needed
professional services; (2) obtain
appropriate professional consultations; (3)
protect the client/patient, psychologist,
or others from harm; or (4) obtain
payment for services from a
client/patient, in which instance
disclosure is limited to the minimum that
is necessary to achieve the purpose.
Rost v. State Board of Psychology
659 A.2d 626 (Pa. Cmmw. Ct. 1995)
…the Code of Ethics for psychologists imposes a duty of confidentiality which extends beyond
the testimonial privilege found in Section 5944 of the Judicial Code; this duty is absolute and
cannot be waived except after full disclosure and written authorization by the client.
Unlike the privilege, it continues even when the information has been previously disclosed to
third parties or is material to litigation initiated by the client.
In the present case, Rost did not even attempt to obtain the consent of her client before
releasing confidential information. Although S.P. was eventually found to have waived the
psychologist-client privilege, this does not absolve Rost from her ethical duty of
confidentiality.
Rost had a duty to either obtain written permission to release the records from S.P. or
challenge the propriety of the subpoena before a judge. Rost did neither. Instead, she
unilaterally gave S.P.'s records to YJCC without consulting with S.P. or her attorney.
Since the language of Ethical Principle 5 of the Board Regulations unambiguously prohibits
this type of conduct, we must concur with the Board's conclusion that Rost violated Section 8
(a)(9) of the Act. Additionally, we agree with the Board that Rost's breach of her duty of
confidentiality constitutes unprofessional conduct in violation of Section 8 (a)(11) of the Act.
Difference
between
subpoena and
court order
How can you tell the
difference?
What is a Subpoena?
A subpoena is a
request for the
production of
documents, or a
request to
appear in court
or other legal
proceeding.
Two Types of
Subpoenas
Subpoena duces tecum asks
you to produce documents as
listed.
Subpoena duces tecum asks
you to produce documents as
listed.
Witness subpoena (subpoena
ad testificandum) asks you to
appear and give live testimony.
Witness subpoena (subpoena
ad testificandum) asks you to
appear and give live testimony.
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Sample
Subpoena To
Produce
Documents
or Things
Top: Has Caption and Docket NumberTop: Has Caption and Docket Number
Middle: Outlines who the subpoena is
for and what documents are being
requested
Middle: Outlines who the subpoena is
for and what documents are being
requested
Bottom: Explains who is requesting
the subpoena and it is signed by the
Prothonotary’s Office
Bottom: Explains who is requesting
the subpoena and it is signed by the
Prothonotary’s Office
Sample
Subpoena To
Attend and
Testify
Top: Caption and Docket NumberTop: Caption and Docket Number
Middle: Outlines who the subpoena is
for, where you must go and what
documents should be brought
Middle: Outlines who the subpoena is
for, where you must go and what
documents should be brought
Bottom: Explains who is requesting
the subpoena and it is signed by the
Prothonotary’s Office
Bottom: Explains who is requesting
the subpoena and it is signed by the
Prothonotary’s Office
What is a Court Order?
A court order is a
direction issued
by a court or a
judge requiring a
person to do or
not do
something.
Sample Court
Order
Top: Will say
ORDER on it
Top: Will say
ORDER on it
Bottom: Will be
signed by a Judge
Bottom: Will be
signed by a Judge
What do you do
if you receive a
subpoena or
court order?
Take a deep breath and stay
calm
How do you respond when you get “that”
letter in the mail?
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How to
Respond to A
Subpoena for
Records
Under PA law, a psychologist can only
release records with a subpoena and
consent from the patient or a court
order from a judge.
Review the document to determine if it
is a court order or subpoena (a
subpoena is usually signed by the
Prothonotary’s office)
Next check to see if the subpoena has
the appropriate releases attached.
If the appropriate releases are
attached, then send the records to the
attorney.
How to
Respond to A
Subpoena for
Records
Continued…
If the appropriate releases are not
attached, you cannot release the
records, or release any patient
identifying information.
So that you are not held in contempt of
the subpoena, send a letter to the
attorney stating, “I am in receipt of
your subpoena however under
Pennsylvania Law, I can only release
records with a subpoena and a signed
release from the patient or a court
order from the judge.”
Please note: It is the responsibility of
the attorney to obtain the releases
NOT the psychologist.
How to
Respond to A
Subpoena to
Attend and
Tes ti fy
Under PA law, a psychologist can only
testify with a subpoena and consent
from the patient or a court order from
a judge.
Review the document to determine if it
is a court order or subpoena (a
subpoena is usually signed by the
Prothonotary’s office)
Next check to see if the subpoena has
the appropriate releases attached.
If the appropriate releases are
attached, then proceed to attend the
hearing/deposition.
How to
Respond to A
Subpoena to
Attend and
Tes ti fy
Continued…
If the appropriate releases are not attached, attempt to
contact the requesting party, in writing, to request the
release or an overriding court order. If time is of the
essence, proceed to attend the hearing/deposition,
however, before you begin your testimony advise the
judge that, “I am here in order to comply with the
subpoena, however, under Pennsylvania Law, I can only
testify with a subpoena and a signed release from the
patient or by a court order from the judge. Since I do
not have a release from the patient, I request that the
Court order me to testify.”
Please note: Attorneys must give you reasonable time to
comply with the subpoena, if your schedule is in conflict
you can either try to testify via telephone or at a time
when it would not conflict with your schedule.
Obtaining
Patient’s
Consent
A lot of times an attorney will try to
bully the psychologist into obtaining
the consent.
It is the obligation of the requesting
attorney to obtain the patient’s
consent NOT the psychologist.
It is also important to remember that
you cannot release any patient
identifying information so you must
speak in general terms to the attorney
until the consent is obtained.
Who’s consent
must be
obtained?
The patient’s consent
If the patient is a minor child, you will
need to obtain the consent of the
child’s parents.
Remember if the parents are divorced
or separated and there is a custody
order in place granting the parents
joint legal custody then consent must
be obtained by both parents.
If the patient was involved in couples
or family therapy remember to get the
consent of all parties- if don’t have
consent from all parties you need to
didact the information concerning
those that did not consent to the
release of records.
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How to
Respond to a
Court Order for
Records or to
Tes ti fy
Review the document to determine if it
is a court order or subpoena (a court
order is signed by a judge and usually
has a caption on it and has the word
ORDER on it).
If you receive an order from the judge,
you have to comply with the request to
either release records or testify.
What are some
deviations
from the
general rules
on how to
respond to a
subpoena and
court order?
Coroner’s Subpoena is treated as a
Court Order
Administrative judges often use
subpoenas which are also treated as
Court Orders (ex. Workers Comp.,
Social Security Disability)
When a patient
dies can an
Executor of an
Estate get
access to the
patient’s
records?
No, the executor cannot have access to
the patient’s records unless there is a
court order or the patient before
he/she died signed a release allowing
the executor to have access to the
patient’s records.
What
documents
must be turned
over?
Usually a subpoena or
court order will
request the patient’s
entire file
.
What about
psychological
testing?
You can release the raw test data to
the attorney.
Since the testing materials are
copyrighted, you cannot give these to
the attorney.
APA Code of
Ethics- 9.04
Release of Test
Data
(a) The term test data refers to raw and scaled scores,
client/patient responses to test questions or stimuli, and
psychologists' notes and recordings concerning
client/patient statements and behavior during an
examination. Those portions of test materials that include
client/patient responses are included in the definition
of test data. Pursuant to a client/patient release,
psychologists provide test data to the client/patient or
other persons identified in the release. Psychologists may
refrain from releasing test data to protect a client/patient
or others from substantial harm or misuse or
misrepresentation of the data or the test, recognizing that
in many instances release of confidential information under
these circumstances is regulated by law. (See also
Standard 9.11, Maintaining Test Security.)
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APA Code of
Ethics- 9.11
Maintaining
Test Security
The term test materials refers to manuals, instruments,
protocols, and test questions or stimuli and does not
include test data as defined in Standard 9.04, Release
of Test Data. Psychologists make reasonable efforts to
maintain the integrity and security of test materials and
other assessment techniques consistent with law and
contractual obligations, and in a manner that permits
adherence to this Ethics Code.
Do you need to
release reports
that were
given to you by
other providers
but are part of
the patient’s
record?
No. You should not re-
release information. The
reason for this is that you
cannot guarantee that it
is a true and correct
copy of the information.
(Ex. It may be missing a
page.)
Test Your
knowledge of
subpoenas and
court orders
True False Questions/Vignettes
Test Your
Knowledge:
True or False. You received a subpoena
in the mail without a patient’s
consent/authorization. You should
send out the records to the requesting
attorney.
True or False. You received a subpoena
in the mail without a patient’s
consent/authorization. It is your
responsibility to contact the patient to
get his/her consent.
Test Your
Knowledge
Continued:
True or False. A judge ordering you to
testify from the bench is a court order.
True or False. You can turn over raw
test data as well as the test booklet to
the requesting attorney.
True or False. An Executor contacts you
requesting the records of the
decedent, you can send them the
records.
Vignettes
On Friday, Dr. Brown received a
subpoena without the signed consent of
the patient from Attorney Smith.
Attorney Smith calls and leaves a
message that he needs the records
immediately. He calls your office again
and asks why you haven’t responded to
the subpoena he sent you last week
concerning John Doe. How to you
respond to him?
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Vignettes
continued…
Dr. Brown receives a subpoena and
consent from dad for a minor child that
he is treating. The minor child’s
parents are divorced. Both mom and
dad have joint legal custody of the
child. How do you respond to the
subpoena request?
Vignettes
continued…
Dr. Brown receives a subpoena to
testify in a hearing for a patient. The
subpoena did not have a release
attached to it. The subpoena
requested him to attend the trial and
bring any and all records with him.
What should Dr. Brown do?
Vignettes
continued…
Dr. Brown receives a subpoena for
records from the Coroner’s office
regarding a patient who committed
suicide. What should Dr. Brown do?
Any Questions
Testimony
What to do if you are asked to
testify in court?
APA GUIDELINES
Specialty Guidelines for Forensic Psychology
Guidelines for Child Custody Evaluations In
Family Law Proceedings
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Things to
Consider When
Testifying in
Court
Clarify your role and your goal
Identify who will pay
You can make these clear in a referral form
and/or your Informed Consent Form
Handouts
Inhale. Exhale.
Breathe
Mindset for
Tes ti fying
You are simply answering
questions
Boundaries of your
responsibilities
Acceptable to inform
the Court that you are
unable to answer
certain questions
What are you able to
speak to, and what
you are not
Psychoeducation for the
Courts
Set yourself up for
success:
Forms (templates
available)
Boundaries with
clients: advance
payment and self-care
Testimony preparation
with the attorney
Will be able to see
what questions you will
be asked, and can
prepare your answers
Ask what questions you
think opposing counsel
will ask- prepare for
how will answer those
questions
Tips
Good night’s sleep, eat good breakfast, leave early
Dress well: Appearance is Important
Listen carefully. Answer only the question asked.
Okay to ask them to repeat a question or re-phrase.
Speak Clearly. Respond orally.
Do not volunteer information.
Be positive. Be confident. (Body language: cool,
calm & collected.) Be prepared.
Stop talking if someone says, “objection.” Wait for
direction from the Judge as to if you are to answer.
Take your time. Do not feel pressured to answer
multiple questions quickly. Okay to take a deep
breath in, a deep breath out, and then respond.
Benefits
Intellectual
Financial
Reach out
for support &
consultation
PPA Child and Family
Forensic Committee
PPA Child and Family
Forensic Committee
Our business cards
available
Our business cards
available
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Mock Testimony Questions?
Please feel free to contact us.
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