belong to the psychologist’s employer, not to the psychologist.
• The therapist–client privilege insulates the records or
test data from disclosure. The rationale for the privilege,
recognized in many states, is that the openness necessary for
effective therapy requires clients to expect that all records of
therapy, contents of therapeutic disclosures and test data will
remain confidential. Disclosure would be a serious invasion
of the client’s privacy. The psychologist is under an ethical
obligation to protect the client’s reasonable expectations of
confidentiality (APA Ethics Code, Ethical Standards, Section
4). There are important exceptions to this protection that
negate the privilege. For example, if a client or former client is
a party to the litigation and has raised his or her mental state
as an issue in the proceeding, the client may have waived the
psychotherapist-patient privilege. This varies by jurisdiction,
with most jurisdictions holding a broad patient-litigant
exception to privilege, with a few construing the patient-litigant exception much more narrowly. It is important
that the psychologist be aware of the law in the relevant
jurisdiction since this may ultimately control the issue about
release of (otherwise) confidential client information. In this
circumstance, the fact that a client who is a party to a legal
case does not want to consent to release of information may
not ultimately be dispositive on the issue. In such a case, the
psychologist should discuss the issue of potential patient-litigant exception with the client’s
attorney, to determine if the records
will need to be turned over due to the
exception and to obtain any needed
authorizations from the client.
• The information sought is not
relevant to the issues before the court.
• Public dissemination of test
information, such as manuals or protocols,
may harm the public interest because
it may affect responses of future test
• Test publishers have an interest in the
protection of test information, and the
psychologist may have a contractual or
other legal obligation (e.g., copyright laws)
not to disclose such information.
• Psychologists have an ethical
obligation to protect the integrity and
security of test information and data,
including protecting the intellectual
property and unauthorized test disclosure,
and to avoid misuse of assessment
techniques and data. Psychologists are
also ethically obligated to take reasonable
steps to prevent others from misusing such
• Some court rules allow the party
receiving the subpoena to object to the subpoena’s demand
or ask that the demand be limited on the basis that it imposes
an undue burden on the recipient (see, e.g., Rule 45(c) of
the Federal Rules of Civil Procedure, 2014).
Ultimately, the judge’s ruling controls in a court.
Psychologists who are not violating human rights and who
take reasonable steps to follow Standard 1.02 of the Ethics
Code and inform the court of their requirements under the
Ethics Code will not be subject to disciplinary procedures
for complying with a court order directing them to produce
information. Protecting patient privacy when the court calls can
be complicated. To respond appropriately, psychologists should
weigh ethical responsibilities and legal demands. Psychologists
who have questions should consult legal counsel. n
This article is condensed from “Strategies for Private
Practitioners Coping With Subpoenas or Compelled
Testimony for Client Records or Test Data or Test
Materials,” which appeared in Professional Psychology:
Research and Practice, Vol. 47( 1), Feb 2016, 1–11. To
read the full article, which includes all citations and
appendices, go to www.apa.org/about/offices/ogc/private-practitioners.pdf.
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