In some cases, a court can subpoena marriage counseling records to determine if the relationship is acrimonious or not. If a judge issues a subpoena, a counselor’s records can be safely disclosed without risk to the client. However, if the court orders the disclosure, the therapist can object to the subpoena and delay the disclosure.
In general, it is difficult to get copies of marriage counseling records, especially when there are several parties. Thankfully, Washington has implemented the HIPAA (Health Insurance Portability and Accountability Act) to protect confidential statements, which is a big step in the right direction. However, if the other party refuses to sign a HIPAA release, they may use this information against them in the future.
Another common reason a marriage counselor’s records could be requested is to prove that the other party is the aggrieved party in the divorce or custody case. Under the MHDDCA, the counselor cannot be forced to testify in court without consent, and they cannot reveal confidential statements without the consent of the other party. Whether a divorce or custody battle is the reason for a subpoena, the therapist’s records should be protected.
Regardless of the reason for the subpoena, a marriage counselor must sign a waiver of privilege prior to being requested. If the client waives privilege, the attorney must seek an order compelling the therapist to appear before the court. During the process, the therapist must be present, which may mean the marriage counselor will have to comply with the court order. But if the judge does not sign the consent, the court cannot subpoena the records.
In such cases, a marriage counselor should sign a HIPAA release if he or she does not want his or her records to be disclosed. In addition, a divorce or child custody case can make it difficult for a marriage counselor to comply with a subpoenas. As such, a divorce or child custody dispute can lead to the production of their records.
The court will also need to consider the privacy interests of both parties. If one or both of them has a HIPAA release, the other party cannot legally use the documents. A divorce or custody hearing may also require a marriage counselor’s records to be produced. The divorce or child custody case may also request the records of a mental health provider. Usually, this information will be protected under HIPAA.
If a divorce or other legal action has been filed against the counselor, a subpoena can be issued for his or her records. Usually, the court has a right to inspect the records before allowing them to be disclosed. This does not happen very often, and the court does not have the authority to demand the records. If the subpoena is issued for a marriage counseling session, the therapist must respond in writing within two weeks.