Subpoenaing Mental Health Patient Information
Jill Cranston Bentz, Esq.
We represent a number of mental healthcare providers, and a problem that these
providers encounter as many as four or five times per week is attorneys attempting to
subpoena mental health records in violation of W. Va. Code § 27-3-1 et seq.
West Virginia Code Section 27-3-1 prohibits the disclosure of "[c]ommunications and
information obtained in the course of treatment or evaluation of any client or
patient." The statute further defines "confidential information" with
respect to mental health patients as follows:
information transmitted by a patient or client or family thereof for purposes relating to diagnosis or treatment, information transmitted by persons participating in the accomplishment of the objectives of diagnosis or treatment, all diagnoses or opinions formed regarding a client's or patient's physical, mental or emotional condition; any advice, instructions or prescriptions issued in the course of diagnosis or treatment, and any record or characterization of the matters hereinbefore described . . . .
W. Va. Code § 27-3-1 (1999). "Confidential information" under the mental
health statute also includes the fact that a person is or has been a client or patient.
Importantly, this statute prescribes those situations in which such information may be
disclosed: (1) with consent; (2) in criminal commitment proceedings; (3) in civil
commitment proceedings; (4) pursuant to a court order; (5) if there is a threat of
imminent harm; and (6) for treatment purposes. Specifically, West Virginia Code Sections
27-3-1(b)(1) and (2) provide that confidential information may be disclosed in civil and
criminal commitment proceedings under West Virginia Code Sections 27-5-4 and 27-6A-1 et
seq. Additionally, Sections 27-3-1(b)(3), (4) and (5) permit disclosure "[p]ursuant
to an order of any court based upon a finding that said information is sufficiently
relevant to a proceeding before the court to outweigh the importance of maintaining the
confidentiality established by this section;" "[t]o protect against a clear and
substantial danger of imminent injury by a patient or client to himself or another;"
and "[f]or treatment or internal review purposes, to staff of the mental health
facility where the patient is being cared for or to other health professionals involved in
treatment of the patient." W. Va. Code § 27-3-1(b)(3)-(5) (1999).
Providers of mental healthcare services often receive subpoenas duces tecum and subpoenas
for witness testimony, requesting the release of confidential mental health patient
information. While West Virginia Code Section 27-3-1(b)(3) permits the disclosure of
confidential information pursuant to a court order, the West Virginia Supreme Court of
Appeals has determined that a subpoena is not the type of binding court order contemplated
by the statute.
In Allen v. Smith, 179 W. Va 360, 368 S.E.2d 924 (1988), Robin Allen was hospitalized for
emotional problems and provided information of a sensitive, personal nature to her
physician. In her subsequent divorce proceeding, her husband's lawyer served a subpoena
duces tecum upon Mrs. Allen's physician, requesting records pertaining to his treatment of
her. In response to the subpoena, the physician forwarded Mrs. Allen's medical records,
including confidential information provided by Mrs. Allen during her treatment, to the
lawyer. A year later, Mrs. Allen sued her physician for releasing the confidential
information.
The physician argued that he released the medical records in accordance with a valid court
order. In response, the Court stated, "[n]othing, however, could be farther from the
truth." Allen, 179 W. Va. at 362, 368 S.E.2d at 926 (1988). The Allen Court
distinguished a court order from a subpoena:
A subpoena is issued automatically by a clerk of court upon the ex parte application of on
party litigant. Although a subpoena is enforceable through the court's power of contempt
until it has been quashed by regular, in-court proceedings, a bare subpoena is not the
type of binding court order contemplated by W. Va. Code, 27-3-1(b)(3) (1977).
Id. (Italics in original.) The Court further explained that only upon a motion to quash
the subpoena "would there have been a binding court ruling determining whether the
records came within the exception to confidentiality set forth in W. Va. Code,
27-3-1(b)(3) (1977)." Id. (Italics in original.)
By acknowledging that a cause of action in tort exists for the unauthorized release of a
patient's medical records, the Court highlighted the duty of mental health providers to
move to quash a subpoena seeking confidential information. Lawyers around the state,
including county prosecutors, routinely serve subpoenas for confidential mental health
patient information. Because these lawyers serve the subpoenas without an accompanying
release or court order, mental health providers on almost a weekly basis must go through
the time and expense of retaining a lawyer to appear on its behalf to quash the subpoena.
Almost always, the Court conducts the balancing test required by West Virginia Code
Section 27-3-1(b)(3) and ultimately enters a court order permitting the release of the
confidential information.
This article is an attempt to remind West Virginia lawyers to obtain the consent of the
patient or his authorized representative or a court order before serving a subpoena upon a
mental health provider. There is a stigma associated with one's treatment for a mental
health related problem, rendering it more sensitive than other types of medical
information. The Legislature clearly intended for lawyers and others seeking mental health
related information to meet the requirements of West Virginia Code Section 27-3-1 et seq.
before gaining access to this personal information. Indeed, an unauthorized release of
this information could subject the mental health provider to a tort claim.
***
SAMPLE ORDER
[ ] seeks [testimony/records] related to [patient] for the purpose of
. Because West Virginia Code Section 27-3-1 prohibits the disclosure of information
obtained in the course of treatment or evaluation of a mental health patient, including
the fact that a person is or has been a patient, [provider] cannot provide
[testimony/records] relating to [provider's] treatment of [patient] absent a court order
entered pursuant to West Virginia Code Section 27-3-1.
After due consideration, the Court FINDS and hereby ORDERS that the information is
sufficiently relevant to this proceeding to outweigh the importance of maintaining the
confidentiality established by West Virginia Code § 27-3-1 et seq.
The Clerk is hereby directed to forward certified copies of this order to all counsel of
record.
Entered:
Judge
About the Author - Ms. Bentz is an attorney in Charleston.