Guidelines for Psychologists Who Receive a Subpoena for Their Records
Jack S. Annon
ABSTRACT: At some time, psychologists are likely to receive a subpoena requesting their records on one of their clients. The psychologist may be legally required to comply, but such requests may also be in conflict with the state laws concerning patient confidentiality, relevant national ethics codes and guidelines, and test publishers and copyright law. The relevant issues are discussed and guidelines for responding to such subpoenas are offered.
What do you do when you receive a subpoena duces tecum (a legal command to appear with specific documents) that requests the following?
Please provide all written or computer generated reports; notes; test stimuli; test scores; all verbal, written, or other responses to the test stimuli; and test manuals for the testing procedures used in evaluating defendant ...
In our current litigious society, in all probability many psychologists will receive such a request. How the psychologist responds may depend upon the attorneys involved, the judge involved, the client or patient involved, state laws, relevant national ethics codes and guidelines, test publishers and copyright law, and the individual psychologist's awareness of possible choices.
The following guidelines are based on my personal experiences. These guidelines are not intended to provide legal advice, nor are they intended to be, or to substitute for, the advice of an attorney. They are offered only as suggestions of the various options that an individual psychologist may consider in responding to such a subpoena.
For readability purposes I have elected to use the first person tense as a writing form. Also, the suggestions concerning state law are relevant to the State of Hawaii only, and readers should consult their own state laws pertaining to these matters.
It is a recognized principle of law that all individuals are required to provide all relevant information available to the trier of fact that will be necessary for deciding the issues before the court. Almost all federal jurisdictions and states recognize a psychologist-patient privilege or psychotherapist-patient privilege. In Hawaii, Rule 504.1 of the Hawaii Rules of Evidence (1996) pertains to the psychologist-client privilege. The Rule states that a client:
... has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling or psychotherapy with respect to behavioral problems, including substance addiction or abuse, among oneself, the client's psychologist, and persons who are participating in the counseling or psychotherapy under the direction of the psychologist, including members of the client's family (504.1(3) (b) p.125).
The law then states that the privilege may be claimed by the client or guardian or person representing the client. However, it also states that the psychologist is presumed to have authority to claim the privilege on behalf of the client.
There are four exceptions to the privilege. One is for proceedings for hospitalization. Another is if the examination is by order of a court. A third is if the client has a condition and is using that condition as an element of a claim for defense. The fourth is if there are proceedings against the psychologist, though even here there are limiting factors.
Thus, the first step is to determine that the subpoena is valid (e.g. subpoena may not have been properly served as required by the individual state, subpoena issued in a state other than one in which the psychologist is residing, subpoena may not have jurisdiction over the psychologist or his or her records, etc.). The psychologist may wish to consult with an attorney concerning this.
The psychologist will also want to determine the possible harmful effects that disclosing information may cause the client. He or she may want to consider general grounds for opposing or limiting information turned over in order to help protect the client. It is advisable to contact the client or the attorney who represents the client, or the legal guardian, to inform them that such a subpoena has been received. If the client does not fall under the exceptions to the psychologist's privilege and is not willing to give up the privilege, the matter may end with a short letter to the court and to the attorney issuing the subpoena.
However, even if the client waives the privilege, the psychologist must thoroughly examine the implications of releasing the information. The psychologist should attempt to assist the patient in limiting disclosure only to the information required by the particular circumstances, and, most importantly, only to other professionals who are qualified to interpret the data.
Next the psychologist should refer to the state laws pertaining to the psychology licensing or certification board. The Hawaii Revised Statutes 465 governs the practice of psychologists in Hawaii and provides in part:
465.13 (a) In addition to any other actions authorized by law the Board shall refuse to grant a license to any applicant and may revoke or suspend any license, or may place a license, or may put a license holder on conditional probation for any cause authorized by law, including but not limited to the following: ... (3) any unethical practice of psychology as defined by the Board in accordance with its own rules; ... (6)willful unauthorized communication of information received in professional confidence ...
Unethical practice pertains to those ethical practices that are spelled out in the Hawaii Administrative Rules, Title 16, Chapter 98, dealing with psychologists. HAR 16-98-34 defines unethical practice as:
(a) Unethical practice of psychology means willful disregard for any or all of the matters covered in this section. ... When information about psychological procedures and techniques is given, care shall be taken to indicate that they should be used only by persons adequately trained in their use; ... (d) safeguarding information about an individual that has been obtained by the psychologist in the course of teaching, practice, or investigation is a primary obligation of the psychologist. Such information shall not be communicated to others unless certain important conditions are met: (1) Information received in confidence may be revealed only after careful deliberation and where there is a clear and imminent danger to an individual or to society, and then only to appropriate professional workers or public authorities; ... (2) Information obtained in clinical or consulting relationships, or evaluative data concerning children, students, employees and others may be discussed only for professional purposes and only with persons clearly concerned with the case. Written and oral reports should present only data germane to the purpose of the evaluation; Every effort shall be made to avoid undue invasion of privacy; ... (6)The psychologist shall make provisions for the maintenance of confidentiality in the preservation and ultimate disposition of confidential records; ... (j) Psychological tests and other assessment devices, the value of which depends in part or on the
naiveté of the subject, shall not be reproduced or described in popular publications in ways that may invalidate the techniques. Accesses to such devices shall be limited to persons with professional interest who shall safeguard their use; . . . (2) The psychologist shall be responsible for the control of psychological tests and other devices and procedures used for instruction when their value may be damaged by revealing to the general public their specific contents or underlying principles; ...
(k) The test scores, like test materials, may be released only to persons who are qualified to interpret and use them properly.
From the above it may be seen that there is obviously a conflict here between a subpoena for all records and a psychologist supplying such records. Hawaii law states that the only condition in which material could be turned over is after deliberation where there is "clear and imminent danger to an individual or to society." It adds that, even under these circumstances, the information will only be given to "appropriate professional workers or public authorities."
I have cited these relevant portions of the law in court, as well as in letters to the court, in support of my not providing raw test materials and data. Almost all judges have recognized the dilemma posed by the subpoena and my following the state law, and have generally either quashed (voided) the subpoena, or supported my offer to turn over my records to a psychologist who was qualified to interpret the data. In one case, the judge told the attorney that he was not a psychologist and therefore the material would be meaningless to him, and that he would have a chance to cross examine me if I testified on any and all of my data.
Only in one case was I unsuccessful in keeping my records from an attorney who subpoenaed them, and this was determined in a hearing by a judge who was very new to the bench and had never heard of withholding such records. The judge then took the records, personally examined them, selected out portions that he decided were not relevant to the case, and turned over the remaining records sealed to the attorney with the order that he had to return them to me and could not copy them or pass them on to anyone else.
In a similar situation an attorney requested all of my raw data on someone on whom I had performed a privately contracted comprehensive evaluation. In this case the judge ordered the records sealed and placed under seal with the Probation Department where only the three doctors who were appointed by the court to examine the person in regard to criminal responsibility and competency to stand trial had access to them. Then they were returned to me.
Another resource for the psychologist is to obtain a letter from a representative of the State Board of Psychology. In 1993 I asked the then Chair of the Board, Dr. Thomas Merrill, if he would write a letter outlining the Board's position on these matters. For a copy of that letter see Appendix A. Subsequently, in writing to the courts in response to subpoenas, I have appended a copy of Dr. Merrill's letter and have found it very helpful in providing supporting opinion as to the state law.
One state, Illinois, built into law a restriction against requiring psychologists to produce raw test data stating that, even if the subject of the testing requests the raw data, he or she could only have them disclosed to another psychologist. In other words, in Illinois the raw test data is immune from subpoena (Mental Health and Developmental Disabilities Confidentiality Act, Illinois Department of Mental Health and Developmental Disabilities, 1990). More specifically:
Par. 803. (c) Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test and is not subject to disclosure in any administrative, judicial or legislative proceeding. However, any recipient who has been the subject of a psychological test shall have right to have all records relating to the test disclosed to any psychologist designated by the recipient. Request for such disclosure shall be in writing and shall comply with the requirements of subsection (b) of section 5 of this Act.
All state and province boards are members of the Association of State and Provincial Psychology Boards
(ASPPB), a national organization which provides codes of conducts and model acts of licensure of psychologists. In 1991 the ASPPB reviewed various codes of conduct from U.S. and Canadian jurisdictions. Fourteen were selected as a representative sample of twenty-seven U.S. and Canadian regulatory codes. These codes, which are primarily to protect the public interest, are non-optional, and they always pertain. In other words, they are coercive; they are not advisory or
aspirational, such as ethics codes may be. Whereas the professional associations have their own ethical codes and standards, the code of conduct constitutes standards against which the required professional conduct of a psychologist is measured.
The code covers confidential information and the communication of such results ... "to the client, parents, legal guardians or other agents of the client by adequate interpretative aids or explanations" (H.2. p.17). Furthermore, in talking about the integrity of assessment procedures, the code states, "The psychologist shall not reproduce or describe in popular publications, lectures or public presentations, psychological tests or other assessment devices in ways that might invalidate them" (H.4. p.17).
In regard to client records, the code talks generally about psychologists not disclosing confidential information to others except with the informed consent of the client. They also state that they may disclose if it is necessary to protect the clear and substantial risk of imminent serious harm being inflicted by the client, or on the client, or on another person. The only time that the code allows a psychologist to release confidential information is upon the issue of a court order which means a written or oral communication from a member of the judiciary, or other court magistrate or administrator, if such authority has been lawfully delegated to such a magistrate or administrator, and also in order to conform with a state, federal or provincial law, rule, or regulation.
In 1992 the ASPPB came out with its model act for licensure of psychologists (October 1992). This model act is similar to what the Hawaii State Law contains. It states:
The Board shall have the power and duty to deny, suspend, place on probation and/or require remediation for any psychologist for a specified time, to be determined at the discretion of the Board, or to revoke any license to practice psychology or to impose other disciplinary sanctions, including administrative fines and the cost of disciplinary actions whenever the Board shall find by a preponderance of the evidence that the applicant or psychologist has engaged in any of the following acts or offenses: ... 16) Violation of the code of conduct adopted in the rules and regulations of the Board ... 17) violation of a rule or regulation promulgated by the Board. (M. p. 14-15).
In regard to the issue of privileged communication, the ASPPB states, "The confidential relations and communications between licensed psychologists and their clients are placed in the same basis as those provided by the law between attorneys and clients" (p.1. p. 18). It also specifies that the psychologist is presumed authorized to claim the privilege on the patient's or client's behalf. However, the ASPPB recommends nine exceptions to the privilege: where there is possible harmful neglect of children or elderly or disabled; where there is a will of a client being contested; where such information is necessary for psychologists to defend themselves against any action brought by a patient or client; where an immediate threat of physical violence against identifiable victim is disclosed; where immediate threat of
self-inflicted damaged is disclosed; where the patient or client puts their mental state at issue; where the client was examined pursuant to court order; where the purpose of the proceeding is to collect and substantiate a claim for mental or emotional health services rendered to the patient; and in the context of any investigation or hearing brought by the patient or client and conducted by the Board.
It may well be helpful for psychologists to obtain copies of these model acts and see how their own state law conforms with them, and to perhaps attempt to amend their state laws to be in conformity with the model act.
Ethics and Codes of Conduct
Also relevant, in addition to state laws, are the Ethical Principles of Psychologists and Code of Conduct promulgated by the American Psychological Association in 1992. The APA Code can also be helpful in pointing out to the proper authorities that disclosure of raw data may have specific ethical limitations, particularly when the data is given to unqualified individuals.
For example, Standard 102, which relates to ethics in the law states:
If psychologist's ethical responsibilities conflict with law, psychologists make known their commitment to the ethics code and take steps to resolve the conflict in a responsible manner.
As Tranel (1994) points out, giving raw data to someone who is not qualified to interpret it sets up the conditions for misinterpretation of the data.
The APA Code of Ethics Standard 1.16 (b) states:
If psychologists learn of misuse or misrepresentation of their work, they take reasonable steps to correct or minimize the misuse or misrepresentation.
Tranel has documented how such misuse can take place and he strongly suggests that the psychologist who is subpoenaed advise the attorney to engage the consultation of another licensed psychologist by virtue of license, training and experience to receive the data. This first psychologist could then send the raw data to the second psychologist who could provide the attorney with an interpretation of the data. However, it is also important to point out that the second psychologist still must operate under the same standards as the first psychologist in regard to confidentiality of the data. This is explicitly spelled out in Standard APA Ethics Code 2.02 (b):
Psychologists refrain from misuse of assessment techniques, interventions, results and interpretations and take reasonable steps to prevent others from misusing the information these techniques provide. This includes refraining from releasing raw test results or raw data to persons, other than to patients or clients as appropriate, who are not qualified to use such information.
Another important issue here is maintaining the test security. Standard 2.10 states:
Psychologists make reasonable efforts to maintain the integrity of tests and other assessment techniques consistent with law, contractual obligations, and in a manner that permits compliance with the requirements of this ethics code.
In regard to privacy and confidentiality, Standard 5.02 states:
Psychologists have a primary obligation and take reasonable precautions to respect the confidentiality rights of those with whom they work or consult, recognizing that confidentiality may be established by law, institutional rules, or professional or scientific relationships.
And much more to the point in any given situation is whether the data is relevant to the issue. Standard 5.03 (a) states:
In order to minimize intrusion on privacy, psychologists include in written and oral reports, consultations, and the like, only information germane to the purpose for which the communication is made.
Many psychologists believe that the General Guidelines for Providers of Psychological Services (APA 1987) are "aspirational" only, and only encourage psychologists to improve the quality of their practice. However, in the preamble to the Guidelines, it is clearly stated: "Providers of psychological services have the same responsibility of upholding these specific general guidelines as they would the corresponding ethical principles" (p.1).
The General Guidelines apply not only to individual practitioners, but to those who work in a group practice, or in an organizational setting, or an institutional agency. The Guidelines also state that providers of psychological services have to "abide by" the APA's Ethical Codes and Specialty Guidelines, as well as The Standards for Testing and Conducting Research with Human Participants.
The General Guidelines for Providers of Psychological Services 2.3.7 state:
Psychologists establish and maintain a system that protects the confidentiality of their user's records.
They point out that:
If directed otherwise by statute, by regulation of the force of law, or by court order, psychologists seek a resolution that is both ethically and legally feasible and appropriate; for example, psychologists might request in camera (judges chambers) hearings when they are required by the court to produce records ...
The Guidelines also state that psychologists must have the written consent of the user involved or representative of the user, but most importantly they state:
. . . Even after the consent has been obtained for release, psychologists clearly identify such information as confidential for the recipient of the information.
Then, under this same illustrative statement they say:
When the user's intention to waive confidentiality is judged by a professional psychologist to be contrary to the user's best interest or to be in conflict with that person's legal or civil rights, it is the responsibility of the psychologist to discuss the implications of releasing the psychological information and to assist the user in limiting disclosure by specifying the nature of the information, the recipients and the time period during which the release is in effect, recognizing, however, that the ultimate decision concerning release of information is that of the user.
Even more relevant is the following statement:
Raw psychological data (e.g., test protocols, therapy or interview notes, or questionnaire returns) in which a user is identified are ordinarily released only with the written consent of the user or the user's legal representative, and are released to a person recognized by the psychologist as competent to interpret the data.
The APA's Specialty Guidelines for the Delivery of Services by Clinical Psychologists (1981), 2.3.5, in describing how providers of clinical psychology services maintain a system to protect their records, states:
Clinical psychologists are responsible for maintaining confidentiality of information about users of services, from whatever source derived. . . . The clinical psychologist does not release confidential information except with the written consent of the user directly involved or his or her legal representative. Even after consent for release has been obtained, the clinical psychologist clearly identifies such information as confidential to the recipient of the information. If directed otherwise by statute or regulation with the force of law or by court order, a psychologist may seek a resolution to the conflict that is both ethically and legally feasible and appropriate.
As with the General Guidelines, Specialty Guidelines also state:
Raw psychological data (e.g., questionnaire returns or test protocols) in which a user is identified are released only with written consent of the user or his or her legal representative and released only to a person recognized by the clinical psychologist as qualified and competent to use the data.
The Specialty Guidelines for Forensic Psychologists which were promulgated by Division 41 of the American Psychological Association do not apply only to psychologists who state they are forensic psychologists. Discussing the scope, the Guidelines define the situation in this way:
B. "Forensic Psychology" means all forms of professional psychological conduct when acting, with definable foreknowledge, as a psychological expert on explicitly psycholegal issues, in direct assistance to courts, parties to legal proceedings, correctional and forensic mental health facilities, and administrative, judicial and legislative agencies acting in an adjudicative capacity.
They further define the forensic psychologist as a psychologist who directly engages in the practice of forensic psychology as defined above. This means psychologists performing child custody evaluations or court-ordered evaluations come under the rubric of forensic psychology. The Guidelines also point out the possibility of conflict between forensic professional standards and legal standards and they suggest that:
The forensic psychologist has an obligation to make those legal authorities aware of the source of the conflict and to take reasonable steps to resolve it. Such steps may include, but are not limited to, obtaining the consultation of fellow forensic professionals, obtaining the advice of independent counsel, and conferring directly with the legal representatives involved.
These Guidelines clearly spell out, under 8, Public Professional Communications A.2:
a. When disclosing information about a client to third parties who are not qualified to interpret test results and data, the forensic psychologist complies with principle 16 of the Standards for Educational and Psychological Testing. When required to disclose results to a non-psychologist every attempt is made to ensure that test security is maintained and access to information is restricted to individuals with a legitimate and professional interest in the data. Other qualified mental health professionals who make a request for information pursuant to a lawful order are, by definition, "individuals with a legitimate and professional interest."
b. In providing records and raw data, the forensic psychologist takes reasonable steps to ensure that the receiving party is informed that raw scores must be interpreted by a qualified professional in order to provide reliable and valid information.
The Forensic Guidelines cite the APA Standards for Educational and Psychological Testing (1985). There are a number of standards here that are relevant to this issue. For example, Standard 6.5 states:
Test users should be alert to probable unintended consequences of test use and should attempt to avoid actions that have unintended negative consequences.
Standard 6.6 states:
Responsibilities for test use should be assumed by or delegated only to those individuals who have the training and experience necessary to handle this responsibility in a professional and technically adequate manner. Any special qualifications for test administration or interpretation noted in the manual should be met.
Under part 4 of the Standards for Administrative Procedure, Standard 15.3 states:
Reasonable efforts should be made to assure the validity of test scores by eliminating opportunities for test takers to attain scores by fraudulent means.
In a comment under Standard 15.7 it is stated:
Those who have test materials under their control should take all steps necessary to assure that only individuals with a legitimate need for access to test materials are able to obtain such access.
Finally, in Standard 16.5:
Test data maintained in data files should be adequately protected from improper disclosure. Use of time-sharing networks, data banks and other electronic data processing systems should be restricted to situations in which the confidentiality can be reasonably assured. Resource of possible support in protecting the disclosure of copyrighted test data are the test publishers themselves.
In a personal communication, Beeman, 1995, who represented the Psychological Corporation, subsumed under Harcourt General, Inc., wrote a letter to me in support of maintaining the confidentiality of the test answers and questions, and stating that such is paramount to maintaining the integrity and validity of the tests. It is the Psychological Corporation's position that any copying of the test protocols constitutes an infringement of the copyright and other proprietary rights, and in their view did not fall under the "fair use" exception of the copyright law. They are strongly opposed to the release of copies of questions or protocols in that the tests are extremely valuable instruments which are widely used throughout the world, and an impairment of the security could threaten the validity of the tests and therefore their value as a measurement tool. The psychologist attaching such a letter to his or her request to the Court provides independent information validating the statement of the psychologist's attempts not to comply with turning over testing materials and manuals.
For a much more extensive presentation in this area, see the statement on The Disclosure of Test Data provided by the Committee on Psychological Tests and Assessments of the American Psychological Association, 1996.
Additionally, the Committee on Legal Issues of the APA (1995) has recommended strategies for private practitioners coping with subpoenas or compelled testimony for client records or test data. They offer a number of suggestions that a psychologist could write in a letter requesting that the Court considers the psychologist's obligations to protect the interests of the client as well as third parties such as test publishers and others. Among their suggestions are:
1. The Court direct the psychologist to provide data only to another appropriately qualified psychologist designated by the Court or by the parties seeking such information;
2. That the Court limit the use of client records or test data to prevent wide dissemination;
3. That the Court limit the categories of information that must be produced;
4. That the Court determine for itself, through a non-public hearing or review by the judge in chambers, whether the use of the client records or test data is relevant to the specific issues before the Court or whether the data might be insulated from disclosure in whole or in part by the therapist-client privilege or any other privilege.
They also offer excellent possible grounds for opposing or limiting production of test data:
1. Perhaps the Court does not have jurisdiction over the psychologist or the records;
2. The psychologist does not have custody or control of the records;
3. The therapist-client privilege insulates the records or test data from disclosure;
4. Information is not relevant to the issues before the Court;
5. Public dissemination of test information may harm the public interest because it may affect responses of future test populations;
6. Test publishers have an interest in protection of test information;
7. Psychologists have a contractual or legal obligation not to disclose such information;
8. Psychologists have an ethical obligation to protect the integrity and security of test information to avoid misuse of assessment techniques and data.
Test materials and protocols are not limited to paper and pencil tests or other more commonly used psychological assessment tools. They can extend to any standardized materials that a psychologist uses in performing comprehensive evaluations of individuals. For example, I received a subpoena for all the slides that I had used as part of my assessment of an individual accused of a sex offense. I pointed out to the Court, and appended a copy of the therapist verification statement that I had signed, saying that the use of the materials was exclusively for scientific research, education, assessment or treatment, and that I would not duplicate or allow duplication of the materials to be passed on to anyone else. The supplier of the slides also provided me with a modeling contract that had been signed by the models for the slides, outlining the specific way the slides would be used by professionals.
Finally, I received a formal letter from the supplier of the slides stating that the company would not allow the Court to view the materials or to give them to the Court as they must honor their contract with their models. It was pointed out that if the model became embarrassed or compromised by having the pictures shown they could sue the supplier who in turn could sue me. The supplier also pointed out that public exposure could invalidate the results of the standardized set of materials. When I supplied all of these facts, along with others previously mentioned, to the Court, the request for copies of my slides was denied.
This has happened in other states as well. For example, a psychologist by the name of Steven Dawson in Maine was involved in a similar case in 1993. In that case, while the judge ruled the slides had to be given to the Court, the judge sealed it so that only the Court had access to the slides.
In a similar case concerning psychologist Robert Card in Utah, a motion to quash a subpoena for materials was made along the lines that have been discussed previously. The Court found that their rules that provided for the subpoena were overbroad and exceeded the bounds of permissible discovery relevant to the limited nature of the proceedings before the Court. Therefore the motion to quash was granted.
Another resource for the psychologist is that of the State Psychological Association. In one case the opposing attorney wanted to make my testimony contingent upon my turning over raw test data and assessment materials beforehand. In addition to the other materials that have been discussed so far, I turned to psychologist Henry L. Goldstein, who was then President of the Hawaii Psychological Association and asked if he would be willing to write a letter to the Court in support of my stance.
For a copy of that letter refer to Appendix B. You will note how Dr. Goldstein drew on a lot of the material that I have mentioned previously. This letter was also helpful as part of the data used to support my pleadings to the Court.
Shapiro (1991), in discussing the issues surrounding the surrender of raw psychological test data, commented on the Watts v. The United States 1977 case where the plaintiff issued a subpoena duces tecum for all of the records, including the raw psychological test data, from the defendant, St. Elizabeth's Hospital. He responded that there was a potential violation of the code of ethics as well as the standards for providers of psychological services. The hospital offered to supply the raw data to a qualified licensed psychologist, however the plaintiff did not respond to that offer.
When the plaintiff failed to win the case at the trial level it was appealed, because the hospital had refused to provide the raw data. The Appeals Court indicated that the staff, in accordance with its code of ethics, requested that the plaintiff provide the name of a licensed psychologist to review the data. What is interesting here is the fact that the trial judge recognized that interpreting such raw data was not within the expertise of a psychiatrist whom the plaintiff had retained as an expert witness. Shapiro feels that this Court opinion was very important, not only because it recognizes the ethical constraints of psychologists, but it also states that psychiatrists, without special training, are not qualified to interpret such tests.
Shapiro points out the importance of using ethical standards to prohibit such disclosure rather than say a violation of fifth amendment privilege, or a violation of a psychologist-patient privilege. He cites two cases where using the latter was not successful in preventing the disclosure of psychological data.
In sum, a psychologist may want to use some of the guidelines suggested in formulating a letter to all the parties involved, either in consultation with his or her own attorney, or in consultation with the attorney representing his or her patient or client. If this does not appear to be successful, or for whatever reason, it may be necessary then to have an attorney draw up a motion to quash the subpoena (or to void it), or to issue a protective order. Appendix C is a sample of such a motion in a criminal case in Hawaii. You will notice how the attorney not only used Hawaii State Law, but incorporated the ethical constraints of psychologists as well, and cited relevant professional publications.
Appendix C also includes a Memorandum in Support of Plaintiff's Motion for Protective Order or in the Alternative Motion to Quash a Subpoena for my records. This was a civil rights case and you can see how the attorney also used the State Law pertaining to psychologists, as well as ethical principles, as well as other relevant data. This was a case where I was ordered to turn over my records to a psychiatrist whom I did not feel was appropriately trained to interpret the data. This Appendix also includes the Affidavit of the attorney, as well as my Affidavit supporting my position.
Finally, Appendix D is a Memorandum in Opposition to the Prosecution's Motion for Disclosure of my records in a criminal case. This case is particularly interesting for those in Hawaii because a different tactic was used, and instead of quoting the psychology law or ethics code, the attorney cited Hawaii Rules of Evidence, as well as the Federal Rules of Criminal Procedure, and other Federal cases in support of the attorney's position.
In conclusion, it is important to note that laws, ethic codes, and guidelines are continually changing, and it is important for the individual psychologist to keep abreast of the latest revisions of such documents in relation to his or her practice. It has been an evolving learning process for me, as I am sure it has been for other psychologists as well. I hope that these guidelines have been of some assistance to the practicing psychologist, and I would welcome any additional strategies that other psychologists facing these decisions have used.
American Educational Research Association, American Psychological Association, & National Council on Measurement in Education (1985). Standards for Educational and Psychological Testing. Washington, DC:
American Psychological Association.
American Psychological Association (1992). Ethical Principles of Psychologists and Code of Conduct. Washington, DC:
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APA Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for Forensic Psychologists. American
Psychology Law Society, 11(1), 8-11.
Board of Professional Affairs, Committee on Professional Standards (1987). General Guidelines for Providers of Psychological Services.
Psychologist, 42(7), 712-723.
Committee on Professional Standards (1981). Specialty Guidelines for the Delivery of Services by Clinical Psychologists.
Psychologist, 36(6), 640-651.
Committee on Psychological Tests and Assessments (1996). The Disclosure of Test Data. Washington, DC:
American Psychological Association.
Shapiro, D. L. (1991). Forensic Psychological Assessment (). Boston:
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Tranel, D. (1994). The release of psychological data to nonexperts: Ethical and legal considerations.
Professional Psychology: Research and
Practice, 25(1), 33-38.
Watts v. U.S., No. 77-1428 (D.C. Cir. 1977) (unpublished opinion).