Can you ignore a subpoena or a subpoena duces tecum that is

Can you ignore a subpoena or a subpoena duces tecum that is clearly defective, in that some key aspect is missing? Explain your answer and provide APA references please. Thanks

Solution

The Dreaded Subpoena

Sooner or later in their careers, most psychotherapists and counselors are likely to receive a subpoena requesting client records. Therapists often react with dread, or respond with a fight or flight response when served with a subpoena, which can result in either ignoring the subpoena or immediately providing the requested records. Either response may be illegal, unethical and counter-clinical. Responding to subpoenas can be complicated and complex, since legal requirements sometimes conflict with ethical guidelines and copyrights laws.

Receiving a legal-looking document commanding you to turn your records over to an attorney can be very intimidating and stressful. The probability is high in our litigious society that many psychologists will receive such a request. This document will help you navigate the legal and ethical complexities and guide you in making informed decisions in response to subpoena requests. The law does vary from jurisdiction to jurisdiction, so it is advisable to also consult with an attorney in your own jurisdiction.

Therapists often overlook the simple possibility that clients may approve or, at the least, do not mind that their therapist send copies of their records to attorneys or courts. In such cases, the client can simply fill out and sign an Authorization to Release Information form, which frees the therapist (in most situations) to respond to the subpoena as requested.

What Is A Subpoena?

A Subpoena is a legal document or order requiring an individual (psychotherapist) to appear, and usually to testify, in court on a certain date and/or to produce documents.

Subpoena duces tecum is derived from the Latin meaning \"bring it with you.\" It is an order requiring a witness (psychotherapist) to bring specific documents, reports, tapes or any other specified records that are in the possession or under the control of the witness to a certain place at a certain time.

A subpoena is usually served by a neutral person not a party to the litigation. Usually, legal service is done by a professional, sheriff or someone else, who delivers a copy in person or leaves it at the intended recipient\'s residence or place of business. Attempting to avoid being served a subpoena is most likely unrealistic.

Who May Initiate Subpoenas?

It is very important to understand the differences between the various types of subpoenas, especially between a subpoena initiated by an attorney vs. a court-ordered subpoena. In some jurisdictions, as in California and many other states, subpoenas can be issued routinely by attorneys. In other words, not all subpoenas are court-ordered. While not all subpoenas are court orders, nevertheless therapists should not ignore any subpoena, regardless of who initiated it.

In contrast to subpoenas generated by attorneys, a subpoena generated by a court is considered a court order and is generally issued only after a hearing before a judge. Such a court order is likely to compel a disclosure, unless the order is appealed to a higher court or the court/judge changes their opinion at the request of the therapist, the client, the attorney, or other parties. In the end, the court must decide what information or records are protected and what are not.