In nearly four decades of practice, I’ve experienced a number of attempts by various individuals to gain access to my client records. Here are a few of them.
- Two police officers showed up in my office asking for records regarding a former client. They told me that the person was of interest in a very serious crime and they were trying to close that case. Would I please give them my records for that client? When I told the officers that I would be happy to comply with any order from the court, they pressured me. “Really! You are going to make us get a subpoena?” Yep.
- An attorney sent me a very official looking letter that I believe was deliberately drafted to look like a court order. It was full of legal jargon and demands for information regarding a former client. I could have simply thrown it in the trash, but instead I called the attorney’s office. I knew the attorney would be waiting on my call. Sure enough, when I told the receptionist who I was, she immediately patched me through to his office. He answered on the first ring.
“I’m calling regarding your ‘request’ for information from me,” I said. Not waiting for him to make a comment, I continued, “I’m sure you know I cannot even acknowledge who my clients are without a court order or the client’s permission. Do you have either of those?” Of course, he did not. The call was polite and short. I never heard from him again.
- A parent called my office seeking “any records whatsoever” I had pertaining to my therapeutic relationship with his son, who was a minor at the time. Ordinarily, I would have been happy to chat with a parent. However, I knew that this father’s custodial rights had been terminated by the court (my client’s mother had provided those documents to me), so the man calling me had no legal right to his son’s records. I declined his request.
Without experience, it might be easy to be intimidated by police, angry parents or clever attorneys. But you cannot be arrested (as I was threatened on one occasion) for following counseling ethics and HIPAA requirements regarding client information. In fact, you will likely be in greater trouble if you concede to these “requests” and thus violate our code of ethics.
To make your life a little less stressful, let me suggest three simple statements/rules that will help you know when to divulge information and when to stay silent.
First, never forget this line: “Who my clients are or are not is confidential information.” The two officers I mentioned above began by saying, “We are here to talk about M— S—, one of your former clients. Do you remember her?”
They were playing me. If I had acknowledged that I remembered her (as, in fact, I did), they would already have been on their way to pressuring me for more information. I simply delivered the line above and then shut my mouth.
Second, remember to ask, “Do you have a court order?” No court order is verbal. Police officers, lawyers and others have tried to tell me they had a court order and wanted me to provide information. I always state that I’m happy to comply with any court order that I receive. Unless a court order is provided to me, that is nearly always the last I will hear about a request for information.
Even if a printed order is provided, it must be signed by a judge. The lawyer who tried to scam me knew he couldn’t forge or fake a judge’s signature without risking losing his license and perhaps going to jail. I always first flip to the last page of the order to see what judge signed it. No judge’s signature, no information.
Finally, ask, “Who has legal right to this information?” Without a court order, that legal right generally lies exclusively with the client, but in the case of minors, those who have legal guardianship can request records as well. That can get complicated, as I indicated in the scenario above. If I hadn’t anticipated the question of legal guardianship, I might have provided client records to a person who had no right to see them.
If you have no experience with court orders, always consult with your professional organization or a trusted and experienced colleague. If you have questions about a court order, you can call the court to confirm or clarify.
One final caveat: I am not an attorney. I know some jurisdictions may have systems in place that differ from what I’ve described, so check with legal counsel in your area before you need it. You will then be prepared.
Gregory K. Moffatt is a veteran counselor of more than 30 years and the dean of the College of Social and Behavioral Sciences at Point University. His monthly Voice of Experience column for CT Online seeks to share theory, ethics and practice lessons learned from his diverse career, as well as inspiration for today’s counseling professionals, whether they are just starting out or have been practicing for many years. His experience includes three decades of work with children, trauma and abuse, as well as a variety of other experiences, including work with schools, businesses and law enforcement. Contact him at Greg.Moffatt@point.edu.
Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.