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Responding to Subpoenas for Mental Health Records in California

By: Komal Chokshi

In any case where the Plaintiff seeks compensation for mental distress or anguish, Defendants may find themselves needing to subpoena mental health records to probe into pre-existing mental health issues and the extent of the Plaintiff's current complaints.  These records are subject to safeguards above and beyond the average medical record.  Medical providers may find themselves in a conundrum since they must be protective of the patient's mental health records to comply with state and federal laws, but they are also legally required to comply with the subpoena in a timely manner.  Two California laws provide the framework for responding to a subpoena requesting mental health records:

1) The Lanterman-Petris -Short ("LPS") Act or California Welfare and Institutions Code, Section 5328 et. seq.; and
2) The California Confidentiality of Medical Information Act ("CMIA") or Civil Code Section 56 et. seq.

Below is information about each law to take into consideration when responding to a subpoena.

Lanterman-Petris-Short Act
What Types of Records Fall Under the Purview of the Act?
LPS applies to "[a]ll information and records obtained in the course of providing services."

What Types of Providers are Subject to the Act?
California's Welfare & Institutions Code, Section 5328 provides a comprehensive list of the types of facilities subject to the LPS Act.  These facilities include:

  • state hospitals,
  • general acute care hospitals,
  • psychiatric health facilities,
  • mental health rehabilitation centers, and
  • skilled nursing facilities with a special treatment program for individuals with mental illness.

Under What Circumstances May Records be Disclosed?
The facilities listed above may only produce mental health records pursuant to a subpoena if:

  • the subpoena requires that the records be released directly to the Court,
  • the subpoena is accompanied by a valid written authorization for the release of the records, or
  • the subpoena is accompanied by a court order.

In other words, a subpoena seeking release of mental health records to any entity other than the Court is improper unless accompanied by written authorization or a court order.

The California Confidentiality of Medical Information Act
What Types of Records Fall Under the Purview of the Act?
The CMIA protects "medical information" or "any individually identifiable information, in electronic or physical form, in possession of or derived from a providor of health care, health care service plan, pharmaceutical company, or contractor regarding a patient's medical history, mental or physical condition, or treatment."  California Civil Code section 56.05(j)

What Types of Providers are Subject to the Act?
The CMIA applies to:

  • "providers of health care,"
  • "health care service plans," and
  • "contractors."

(These terms are defined by Civil Code section 56.05)

Under What Circumstances May Records be Disclosed?
Disclosure is required when compelled:

  • by a party to a judicial or administrative proceeding pursuant to a subpoena, subpoena duces tecum, notice to appear pursuant to California Code of Civil Procedure section 1987, or other provision authorizing discovery;
  • by a board, commission or administrative agency pursuant to an investigative subpoena issued pursuant to California Government Code section 1180 et seq.; or
  • by an arbitrator or arbitration panel pursuant to a subpoena duces tecum issued under California Code of Civil Procedure Section 1282.6.

In other words, unlike the LPS Act, the CMIA permits disclosure in response to a validly issued subpoena without the additional requirements imposed by the LPS Act.  This article provides guidance on determining which of these two California laws may apply when responding to a subpoena for mental health records in California.  The article does not provide information about federal laws to protect patient privacy (and any related preemption issues) nor does it analyze the myriad of issues that may arise under the psychotherapist-patient privilege, when a minor's records are subpoenaed, or other laws that may come into play.  Whenever there is a doubt about producing a patient's mental health records, it is best to err on the side of caution by protecting the patient's privacy.