pp 27-38 (subpoena)

POPULAR GOVERNMENT Summer 1999 27

ublic mental health facilities, like other public entities providing

human services, accumulate a lot of personal information about

Responding to Subpoenas

A Guide for Mental Health Facilities

JOHN RUBIN AND MARK BOTTS

The authors are Institute of Government faculty members. Rubin specializes in criminal

law and procedure, Botts in mental health law.

the people whom they serve. On the one hand, they have a legal and

ethical duty to hold this information in confidence. On the other

hand, such information may be relevant in a range of legal proceedings. In

a criminal case, for example, the prosecutor may

want to review the mental health records of the

person charged with a crime, or the defendant may

want to review the mental health records of his or

her accuser. Although the mental health facility

and its employees do not have a direct interest in

the proceeding (because they are not parties to it),

they nonetheless are drawn in because they have

information that the parties want.

The subpoena is the typical mechanism for ob-

taining records from someone who is not a party to

a case. A form of court order, a subpoena directs the

person named in it to appear at a designated time

and place to testify, produce documents, or both. In

responding to a subpoena, mental health facilities

must balance their duty to protect confidential in-

formation against their duty to respond to a court

order.

Through questions and answers, this guide dis-

cusses these potentially conflicting obligations. The first two sections dis-

cuss the basic rules governing subpoenas—how they are issued and served,

when a person may obtain reimbursement for expenses, and so on. The re-

maining three sections deal with responding to subpoenas, discussing the

differences in responding to subpoenas for nonconfidential and confiden-

tial information.

Although this guide may be helpful to anyone who maintains confiden-

tial information, it focuses on the obligations of individuals and facilities

28 POPULAR GOVERNMENT Summer 1999

whose primary purpose is to provide mental health, de-

velopmental disabilities, or substance abuse services.

These include the following:

•

Facilities operated by “area authorities,” the lo-

cal governmental units in North Carolina that

provide community-based mental health, devel-

opmental disabilities, and substance abuse ser-

vices

•

Facilities operated by the North Carolina Divi-

sion of Mental Health, Developmental Disabili-

ties, and Substance Abuse Services

•

Public and private facilities or practitioners that

contract with area authorities or the state divi-

sion to provide mental health, developmental dis-

abilities, and substance abuse services

•

Veterans Administration facilities in North Caro-

lina that provide these services

•

Psychiatric units of general hospitals

•

Facilities licensed under Article 2, Chapter 122C,

of the North Carolina General Statutes (hereinaf-

ter G.S.)

The assumption throughout this guide is that the

mental health facility is not a party to the case for

which one of its employees has received a subpoena.

When the facility is a party to the case, the opposing

party usually will use devices other than subpoenas to

obtain information, such as interrogatories (written

questions that the facility must answer) or requests to

produce documents. Also, the opposing party ordi-

narily will contact the facility’s attorney first, who then

will advise facility personnel on how to proceed. In

contrast, when the facility is not a party to the case, the

party seeking the information ordinarily will deliver a

subpoena directly to the facility employee who is

thought to have the records, not to the facility’s legal

counsel. This guide therefore is aimed at the mental

health facility employee who has received or may re-

ceive a subpoena and who must decide, at least ini-

tially, how to proceed.

Readers should keep in mind that this guide offers

general advice only. Although it discusses how to re-

spond to subpoenas for information protected by cer-

tain confidentiality laws, it does not attempt to analyze

in detail what information falls within the scope of

each confidentiality law or what exceptions to confi-

dentiality are recognized by each law. Further, mental

health facilities should decide on a procedure for re-

sponding to subpoenas that meets their own needs.

Some facilities may want to alert their counsel when-

ever an employee receives a subpoena. Others may

decide to adopt a protocol for facility personnel to fol-

low, consulting with legal counsel as questions arise.

Readers are free to incorporate any of the information

in this guide into their own procedure for responding

to subpoenas.

GENERAL PRINCIPLES

1. Are there different types of subpoenas?

Yes. There are two basic types of subpoenas:

•

A subpoena to produce documents, also called a

“document subpoena” or a “subpoena duces tecum,”

which requires the person named in the subpoena to

appear and produce documents

•

A subpoena to testify, also called a “witness sub-

poena,” which requires the person named in the

subpoena to appear and give testimony

The subpoena that you as an employee of a mental health

facility receive may not be specifically labeled as a document

subpoena or a witness subpoena, but it will state whether

you are being called to produce documents, testify, or both.

This guide focuses on how to respond to subpoenas to pro-

duce documents. Responding to subpoenas to testify in-

volves similar considerations, which are discussed briefly in

the last section (see questions 31–32).

2. In what kinds of proceedings may a subpoena

be used?

A subpoena may be used to summon a person to a wide

range of proceedings:

•

Trials and hearings in civil and criminal cases in

either state or federal court

•

Depositions in civil cases, which are proceedings be-

fore trial in which the parties to the case (the plain-

tiff and the defendant) have the opportunity to

question witnesses and examine documents

•

Arbitrations, which are like trials except that the

“judge” who hears the evidence and decides the case

often is a private attorney selected by the parties

•

Hearings before an administrative law judge or an

administrative agency

For all these proceedings, the general principles governing

subpoenas are the same. However, there are some differ-

ences in the procedural details, such as how a subpoena is

issued and how far a person may be compelled to travel.

POPULAR GOVERNMENT Summer 1999 29

This guide addresses trials and depositions in state court,

the proceedings for which mental health facility employees

are most likely to receive a subpoena. Rule 45 of the North

Carolina Rules of Civil Procedure governs subpoenas for

both civil and criminal trials.

Except for the payment of

witness fees (see question 14), the rules on subpoenas are

essentially the same for both types of trials. Rule 45 also

applies to subpoenas for depositions. For purposes of this

guide, the most important difference between a trial and a

deposition is that at the latter no judge is present to rule on

whether a subpoena is proper. This difference may affect

how you respond to a subpoena, particularly when it calls for

confidential records (see question 26).

3. Is a subpoena sufficient authorization for me to

disclose confidential records?

Not necessarily. Most confidentiality laws—including

those that apply to mental health, developmental disabilities,

and substance abuse services—contain some provision

permitting disclosure of confidential records in legal

proceedings. These provisions are not uniform, however.

Although some confidentiality laws permit disclosure in

response to a subpoena, those applicable to mental health,

developmental disabilities, and substance abuse services

contain stricter conditions. Normally, disclosure of records

relating to these services is not permitted unless a court

specifically orders it, the person who is the subject of the

records consents, or the confidentiality law explicitly makes

an exception to confidentiality. Further, in some circum-

stances, prior notification of the person who is the subject

of the records is required before the court may even consider

ordering disclosure. Because confidentiality laws vary, on

receiving a subpoena, you must consider the particular

statute or regulation governing the information to determine

the conditions under which disclosure is permissible (for

discussion of those conditions, see questions 22–30).

4. What happens if I disclose confidential

information without authorization?

Several adverse consequences may follow. Federal law

restricts the disclosure of information concerning patients of

federally assisted alcohol or drug abuse programs.

Violation

of the federal confidentiality law is a crime, punishable by a

fine of up to $500 for a first offense and up to $5,000 for

each subsequent offense.

In addition, North Carolina law

prohibits the disclosure of information relating to clients of

area authorities and other mental health, developmental

disabilities, and substance abuse facilities,

except as

authorized by the Mental Health, Developmental Dis-

abilities, and Substance Abuse Act of 1985 (G.S. 122C).

Unauthorized disclosure is a Class 3 misdemeanor punish-

able by a fine of up to $500.

Failure to maintain the confidentiality of information

also might result in disciplinary action. For example, em-

ployees of area authorities may face suspension, dismissal, or

other disciplinary action if they disclose information in

violation of either the state confidentiality law governing

their facilities or the federal confidentiality law governing

substance abuse services.

Further, the codes of ethics and

standards of practice governing mental health professionals

generally require them to protect client information and

adhere to confidentiality laws.

Violations of these standards

may jeopardize a mental health professional’s license or

certification.

Finally, the unauthorized disclosure of confidential

information could result in civil liability for the treatment

facility or the employee disclosing the records.

5. What are permissible responses to a subpoena?

Ordinarily you must respond to a subpoena in some

fashion, even if you believe that a subpoena alone is not

sufficient authorization to permit you to disclose the

confidential records it seeks. You have three basic options:

•

To “contest” the subpoena if it is objectionable

•

To try to get the person who issued the subpoena to

excuse you from its requirements

•

To “comply” with the subpoena

As used in this guide, to “contest” a subpoena means for-

mally to challenge it. You may do so by moving to quash (nul-

lify) or modify it, which is a way of asking the court to

invalidate or at least limit the subpoena; or by moving for a

protective order, which asks for similar relief. In the case of

a subpoena to attend a deposition, you may submit written

objections to the party who issued the subpoena instead

of filing a motion with the court (see question 20). To con-

test a subpoena, you ordinarily will need to consult with an

attorney.

In some circumstances you may be able to make al-

ternative arrangements with the party who issued the sub-

poena, as he or she has the authority to excuse you from the

subpoena’s requirements. For example, a party may be

willing to excuse you from appearing at the proceeding if

you provide the requested records in advance. You may agree

to such an arrangement if the records are not confidential,

but ordinarily you may not do so if they are confidential (see

question 28).

Often the easiest course is to comply with the subpoena.

It is important, however, to understand the limited meaning

of “comply.” A subpoena is a way of summoning you to a

legal proceeding. To comply with a subpoena to testify, you

must show up at the designated time and place. To comply

with a subpoena for documents, you must produce the

requested documents at the designated time and place. But

complying with a subpoena does not necessarily mean

disclosing confidential information. In many instances you

may comply with the subpoena but leave the question of

disclosure to the judge. For example, if you receive a

subpoena to produce confidential records at trial, you may

appear at the proceeding with the records—thus complying

with the subpoena—and then ask the judge to determine

whether the information should be released. Until the judge

30 POPULAR GOVERNMENT Summer 1999

addresses the issue of confidentiality and orders disclosure,

you are not required to, nor should you, disclose the records

to the subpoenaing party (see questions 26–27).

6. Are there any circumstances in which I do not

have to respond to a subpoena?

Very few. As explained earlier, a subpoena is a form of

court order. If you ignore it and a judge later finds that it was

validly issued, you might be held in contempt.

Only in the

rarest circumstance is it safe for you to disregard a subpoena

(see question 13).

MECHANICS OF SUBPOENAS

7. Who may issue a subpoena?

Any judicial official may issue a subpoena for a trial or a

deposition. Judges, magistrates, and clerks of court all are

judicial officials. Also, an attorney for a party to the case may

issue a subpoena. Often the subpoena you receive will be

from an attorney. Further, a party to the case may issue a

subpoena but only to require a person to testify, not to com-

pel him or her to produce documents. For example, if John

Smith is the plaintiff in a case, he may issue a subpoena to

testify, even if he is not represented by an attorney. However,

he would have to apply to a judicial official for a subpoena

for documents.

8. Does a judicial official have to review a subpoena

before an attorney may issue it?

No. An attorney may issue a subpoena without obtain-

ing permission from a judicial official. But a case must be

pending (that is, already filed) before an attorney may do so.

9. Is a subpoena issued by an attorney considered

a court order even if a judicial official has not

reviewed it?

Yes. A lawfully issued subpoena is a court order no

matter who issues it. If you fail to respond, you might be

held in contempt of court.

10. How are subpoenas served?

The law specifies both the persons who may serve a

subpoena and the procedure they must follow. A sheriff, a

sheriff’s deputy, a coroner, or any other person eighteen

years of age or older may serve a subpoena, as long as the

person serving the subpoena is not a party to the case.

Ordinarily a person must serve a subpoena by delivering

a copy of it by hand to the person named in the subpoena

or by mailing a copy by registered or certified mail, return

receipt requested, to the named person. If the subpoena

requires the person only to appear and testify, not to pro-

duce documents, law enforcement personnel or a coroner

may serve it by a telephone call to the person.

If you are not properly served with a subpoena, you may

not be obligated to respond.

Disregarding a subpoena is

risky, however. If you are wrong about the sufficiency of

service, you might be found in contempt. Even if you are

right, defending against a motion to compel compliance or

against a charge of contempt could be time-consuming and

expensive. Thus, even if service is technically defective, the

most prudent course is to respond—by complying with the

subpoena, contesting it, or making other arrangements with

the issuing party.

11. How long in advance of a proceeding must a

subpoena be served?

As a general rule, there are no formal time limits on

service of a subpoena. You might receive it weeks before the

date and the time when you are supposed to appear, or right

before your scheduled appearance. However, if you cannot

appear or do not have enough time to assemble the

documents requested in the subpoena, there are some steps

you can take (see question 21).

12. May a subpoena require me to go anywhere

within North Carolina?

If the subpoena directs you to appear in court, you may

be required to go anywhere within the state. Thus, for cases

in state court, a person residing in one part of North

Carolina may be subpoenaed to appear at a trial or other

court proceeding in a distant part of the state.

A subpoena to appear at a deposition is more limited.

For cases in state court, a North Carolina resident may be

required to attend a deposition only in the county where he

or she lives, is employed, or conducts business in person.

If the subpoena directs you to attend a deposition outside

these areas, you may object. If the issuing party is unwilling

to change the site of the deposition, you should consult with

an attorney about submitting written objections or moving

to quash the subpoena.

13. May a subpoena require me to go out of state?

The answer depends on the type of proceeding. A sub-

poena issued under the authority of a court of another state

—for example, Georgia—and served on a person in North

Carolina—say, a Raleigh resident—is ineffective to require

the person to attend a proceeding in either the state of

origin or in North Carolina. (The caption, or heading, of the

subpoena should identify the court from which the

subpoena is issued.) This is one of the few situations in

which you may safely disregard a subpoena. Even so, you

probably should consult with an attorney before deciding

how to proceed.

Federal courts have greater authority than state courts to

compel witnesses to travel outside their home states. In

criminal cases in federal court, a subpoena might direct a

witness to attend a trial anywhere in the United States. In

civil cases in federal court, the general rule is that a

subpoena may require a person in one state to attend a

proceeding in another state only if the proceeding is within

one hundred miles of the place of service of the subpoena.

POPULAR GOVERNMENT Summer 1999 31

14. Am I entitled to any fees in responding to a

subpoena?

You are entitled to an appearance fee of five dollars for

each day of your attendance, plus travel expenses (discussed

further in question 15). The procedure for obtaining these

fees differs in civil and criminal cases. In civil cases

(including both trials and depositions), the party who

subpoenaed you is responsible for paying the fees. Some

parties will include a check for appearance and travel fees

with the subpoena, but a party is not obligated to pay you in

advance of the proceeding. If the party does not pay you

once you have appeared at the proceeding, you have the

right to sue. In light of the small amount involved, however,

a lawsuit rarely would be worth the time or the expense. The

clerk of court will certify your attendance and travel

expenses if you need proof that you appeared at the

proceeding.

In criminal cases, appearance and travel fees are paid

from state funds. You must apply for payment within the

statutory time limits, though. If you wish to be paid, you

should apply to the clerk of court immediately after your

appearance.

In limited instances (in civil and criminal cases), the

court may require payment of an expert witness fee, which

may be significantly higher than the nominal appearance fee

due most witnesses.

15. What travel expenses may I recover?

If you reside within the county where you are required

to appear, you are not entitled to any travel expenses. If you

reside outside the county and less than seventy-five miles

from the place of appearance, you are entitled to mileage

reimbursement for each day of travel, at the rate authorized

for state employees. If you reside outside the county and

more than seventy-five miles from the place of appearance,

you are entitled to mileage reimbursement at the state rate

for one round-trip; and if you are required to attend the

proceeding for more than one day, you are entitled to your

actual expenses for lodging and meals (up to the maximum

authorized for state employees) instead of daily mileage.

16. Am I entitled to reimbursement for time spent in

compiling the records?

In most cases, no. Although it often is burdensome, re-

sponding to subpoenas is considered a civic obligation, and

normally neither you nor your employer is entitled to

reimbursement for time spent doing so. If a subpoena is

unduly burdensome, however, you may move to quash it.

Instead of granting the motion, the judge may require the

subpoenaing party to advance the reasonable cost of

producing the records.

You usually are not entitled to copying costs either. In

most instances you must produce the originals of the

requested records, which you are entitled to get back (see

question 18). In some circumstances, however, the party

seeking the records may ask you to provide copies for his or

her use, and you may ask the party to pay copying costs

(assuming, of course, that you may release the records).

GENERAL CONSIDERATIONS IN RESPONDING

TO SUBPOENAS FOR DOCUMENTS

17. What should I do if I am served with a subpoena

directing me to produce documents?

You first should determine what records the subpoena

seeks, whether you have them, and whether they are con-

fidential. Only after you make these determinations will you

be able to decide on an appropriate response. This section

of the guide reviews the general rules for responding to

subpoenas for documents, leaving to the next section the

more specialized rules on subpoenas for confidential

information.

The wording of the subpoena itself will tell you what

records it seeks. You then must determine whether you

have “possession, custody, or control” of the records.

“Possession” means actual, physical possession. “Custody”

and “control” mean the right to obtain the records on

request. To comply with a subpoena, you must produce all

the requested records within your possession, custody, or

control.

For example, assume that you are the custodian of

records for a treatment facility and you are served with a

subpoena for all documents concerning a particular client of

the facility. If you intend to comply, you must produce the

records pertaining to the client that are located in your own

office (because they are within your actual possession) and

the records that are maintained as part of the facility’s client

record system (because they are within your custody or

control). You would not necessarily have to produce

materials kept by individual employees, such as notes made

by clinical staff members for their own use. Whether you

have custody or control of those records would depend on

the facility’s policies regarding access to and use of materials

kept by individual staff members.

18. How do I comply with a subpoena for documents?

To comply with a subpoena for documents, ordinarily

you must appear at the proceeding with the requested

records and remain until the person who issued the

subpoena, or the court, excuses you (if the subpoena is

directed to the custodian of records of the facility and not a

particular individual, any person serving in that capacity

may appear). You must produce the originals of the

documents (or if you do not have originals, copies of them)

unless the court or the subpoenaing party excuses

production of the originals.

If you do not have any of the

requested documents, you still must appear at the

proceeding unless you have been excused.

If you are subpoenaed to a proceeding in court, you

should make copies of any documents before you appear

because the court may retain the originals while the case is

32 POPULAR GOVERNMENT Summer 1999

pending. If you are subpoenaed to a deposition, the party

who issued the subpoena is responsible for having copies

made; he or she does not have a right to retain the

originals.

If you want to reduce the time that you might have to

spend at a proceeding, you should telephone the sub-

poenaing party ahead of time. He or she may be able to give

you a more specific time to appear, cutting down on your

waiting time in court, or put you “on call,” allowing you to

remain at work or at home until needed. When possible, you

should have the issuing party put in writing any change in

the time of your appearance.

19. Is there any way that I can produce the records

without appearing at the proceeding?

Yes. The person who issued the subpoena may be willing

to excuse you from appearing if you provide him or her with

the records in advance of the proceeding. Generally you may

agree to such an arrangement if the documents are not

confidential. If they are confidential, however, you should

not disclose them to the subpoenaing party in advance of

the proceeding without the consent of the person who is the

subject of them.

In addition, Rule 45 of the North Carolina Rules of Civil

Procedure contains a “mail-in” procedure that may be used

in limited circumstances. Instead of appearing and

producing the original documents, you may send certified

copies, along with an affidavit of authenticity, to the

judge presiding over the case (or the judge’s designee, such

as the clerk of court). If you are eligible to use the mail-

in procedure but do not have any of the requested

documents, you may send an affidavit so stating.

The mail-in procedure is available only if (1) the

subpoena is directed to a custodian of “hospital medical

records” (or of “public records”) and (2) the subpoena does

not require the custodian to appear in person and testify.

The term “hospital medical records” is defined broadly to

include any records made in connection with the diagnosis,

care, or treatment of any patient.

But the second condition

allows the issuing party to eliminate the mail-in option

simply by indicating in the subpoena that the custodian

must appear and testify as well as produce documents.

Even when a treatment facility is eligible to use the mail-

in procedure, it ordinarily should not do so with confidential

records unless the subject of the records consents (see

question 28).

20. On what grounds may I contest a subpoena for

documents?

Probably the most common complaint about subpoenas

(other than that they call for confidential information,

discussed later) is that they are too broad and impose too

heavy a burden on the recipient (in legal terms they

are “unreasonable and oppressive”).

For example, when

the proceeding concerns a narrow part of a patient’s life,

a subpoena for all the patient’s records, without limita-

tion as to time, date, or contents, might be considered

unreasonable.

If you believe that a subpoena is too broad or

burdensome, you or your attorney should contact the party

who issued the subpoena to determine whether he or she is

willing to narrow it. If you decide to contest the subpoena,

you almost certainly will need the assistance of an attorney.

Briefly the procedures for contesting subpoenas are as

follows:

•

To contest a subpoena directing you to produce docu-

ments in court, you must file a motion to quash or

modify the subpoena, or a motion for a protective or-

der. You must do so promptly after receiving the sub-

poena but in no event later than the time you are

scheduled to appear.

•

To contest a subpoena directing you to produce docu-

ments at a deposition, you must file a motion to quash

or modify within ten days of receiving the subpoena, or

if you receive the subpoena less than ten days before

the deposition, on or before the date of the deposition.

Alternatively you may contest the subpoena by submit-

ting written objections to the party who issued it. You

must serve the objections on the issuing party within

the same time frame allowed for motions to quash or

modify a subpoena to produce documents for a depo-

sition. It is then up to the issuing party to file a motion

with the court to compel compliance. You still may

have to appear at the deposition if the subpoena re-

quires that you both testify and produce documents;

but until a court order is obtained, the issuing party is

not entitled to look at the documents.

21. What if a subpoena arrives so late that it is

impossible for me to compile the documents in

time or to attend the proceeding?

If you cannot compile the documents in time, you or

your attorney should call the party who issued the subpoena

and try to work out an alternative. If you cannot reach a

satisfactory agreement, your best course is to go to the

proceeding and explain why you could not assemble the

documents. Alternatively you may move to quash the

subpoena if it is served so late and is so burdensome that

requiring compliance would be unreasonable.

The trickier situation is when you cannot attend the

proceeding at all and do not have time to make any formal

response. Rule 45 of the North Carolina Rules of Civil

Procedure states that the failure to obey a subpoena may be

treated as contempt of court only if the failure is “without

adequate cause.” Courts have recognized that inability to

comply with a subpoena is a defense to a charge of

contempt.

Thus if you truly cannot be present, you should

be protected from a contempt charge. You should try to

notify the subpoenaing party that you cannot attend and if

POPULAR GOVERNMENT Summer 1999 33

the subpoena is for a proceeding in court, notify the clerk of

court as well.

CONSIDERATIONS IN RESPONDING TO

SUBPOENAS FOR CONFIDENTIAL RECORDS

22. How do I respond to a subpoena for confidential

records?

As with any subpoena to produce documents, you first

must determine what records the subpoena seeks (see

question 17). If the subpoena calls for confidential records,

you then must examine the statutes and the regulations that

apply to the records being sought. How you respond to the

subpoena depends on both the rules governing subpoenas,

discussed in the preceding section, and the confidentiality

rules governing the particular records. Facilities and

professionals covered by the federal law governing substance

abuse records or the state law governing mental health,

developmental disabilities, and substance abuse services

must keep two basic principles in mind:

•

You should not release confidential information on the

authority of a subpoena alone.

•

You should not ignore the subpoena.

The first principle arises from the confidentiality laws, the

second from the rules governing subpoenas. Although some

confidentiality laws permit disclosure of records in response

to a lawfully issued subpoena,

the state and federal laws

governing facilities that provide mental health, developmen-

tal disabilities, and substance abuse services do not permit

disclosure of client information in response to a subpoena

alone.

On the other hand, the rules governing subpoenas

require you to respond to the subpoena in some fashion,

even if you believe that a subpoena alone is not sufficient au-

thorization to release the requested information.

23. Do I have to notify the patient whose records are

being sought about the subpoena?

Neither the federal confidentiality law governing the

records of substance abuse patients nor the state law

governing mental health, developmental disabilities, and

substance abuse services requires treatment facilities to

notify the person who is the subject of the records being sub-

poenaed. In many instances, however, the party seeking the

records will have to apply for a court order before obtaining

the records, and when the records are protected by the

federal confidentiality law, the party ordinarily must notify

the patient before a court may order disclosure.

Although a treatment facility is not legally required to

notify the patient, there are at least two good reasons for the

facility to do so. First, the patient may want to take legal

action to prevent disclosure. By notifying the patient, the

facility will help ensure that the patient has an adequate

opportunity to assert his or her rights.

Second, the patient may have an interest in waiving

confidentiality. Most confidentiality laws, including the

federal and state ones under discussion in this section,

permit disclosure of confidential information if the

patient consents in writing to release of the information.

Generally, if you obtain proper written authorization,

you may lawfully disclose the information without further

judicial action.

For this reason you also should check the

patient’s medical file for a current consent form authoriz-

ing the disclosure sought by the subpoena. Of course,

any written authorization to disclose confidential infor-

mation must comply with the requirements for consent set

forth in the applicable confidentiality law. Further, the kinds

of information you disclose, the person to whom you make

the disclosure, and the purpose for which the information

is to be used must be expressly permitted by the terms of

the written authorization.

24. Do I still have to appear if the patient consents

to disclosure of the information sought in the

subpoena?

Yes. The patient’s consent allows you to disclose

confidential information in advance of the legal proceeding.

However, the party who issued the subpoena still may want

you to attend the proceeding to testify or authenticate

records. Unless the party who issued the subpoena excuses

you, you must appear.

25. What should I do if the patient has not consented

to disclosure?

Initially you may want to contact the party who issued

the subpoena and inform him or her that you are prohibited

by law from disclosing confidential information in response

to a subpoena—that in the absence of the patient’s con-

sent, you may disclose confidential information about him

or her only in response to a court order. If the informa-

tion is covered by federal substance abuse requirements,

you also may want to advise the person that notice ordinarily

must be given to the patient before a court may even

consider ordering disclosure. Time permitting, you may

want to write a letter to the issuing party, explaining the

restrictions on disclosure. Your facility can develop and keep

on file a form letter for this purpose. You must be careful

that this communication does not confirm or reveal that the

patient identified in the subpoena is receiving or has

received mental health, developmental disabilities, or

substance abuse services.

If you direct the party who issued the subpoena to the

applicable confidentiality law, on reading it, he or she may

be willing to withdraw the subpoena and apply for a court

order. If the subpoena requires you to appear at a trial or

other court proceeding, however, the party may be unwilling

to do so. The practice in many places is to use a subpoena to

bring records into court, where the judge then can examine

them and determine whether to order disclosure.

34 POPULAR GOVERNMENT Summer 1999

26. What are permissible responses to a subpoena

for confidential information if the subpoena is

not withdrawn?

You have two basic options. First, you may contest the

subpoena (see question 20).

Alternatively you may “comply” with the subpoena by

appearing at the designated time and place with the

requested records. However, you must await a court order

before releasing the information. Thus, if you receive a

subpoena to appear in court and you intend to comply, you

should go to the proceeding with the requested documents,

advise the judge that the information sought is confiden-

tial and that the law prohibits you from disclosing it with-

out a court order, and ask the judge to rule on whether the

records should be disclosed. Only if the judge orders you to

disclose the information (or the subject of the records

consents to disclosure) may you lawfully do so.

The second option—that of appearing at the proceeding

and enlisting the judge’s assistance in determining whether

the records should be disclosed—is not feasible when you

have been subpoenaed to a deposition, for a judge is almost

never present at a deposition. If a subpoena requires that

you produce confidential mental health or substance abuse

records at a deposition, and if the issuing party is unwilling

to withdraw the subpoena or seek a court order in ac-

cordance with the applicable confidentiality laws, you

should contact an attorney about contesting the subpoena.

You may have to move to quash the subpoena or submit

written objections in advance of the deposition.

27. Is it really my job to tell the court that the

information is confidential?

Yes. Facilities providing mental health, developmental

disabilities, and substance abuse services have a duty to

safeguard confidential information and, except as autho-

rized by law, to prevent its disclosure.

Further, mental

health professionals have an ethical and legal duty to protect

a patient’s secrets and not divulge patient information in

legal proceedings unless the patient waives confidentiality or

a court determines that the public interest in disclosure

outweighs the patient’s privacy interest.

Assuming that the

patient does not consent to disclosure, and unless the

patient or one of the parties to the proceeding raises the

issue of confidentiality, you have a duty to apprise the judge

that the subpoena seeks confidential information and to

request that the court rule on whether the information

should be disclosed. You also may have to identify the

relevant confidentiality law and explain the requirements for

court-ordered disclosure. When the federal law governing

substance abuse records applies, you should take a copy of

the federal regulations with you, for all judges are not

familiar with the special procedures and criteria for ordering

disclosure under these regulations.

Judicial oversight of disclosure is not a mere technicality;

it is an integral part of the protections for confidential

information. Once a judge learns that the information

sought in the subpoena is confidential, he or she may decide

to review the documents in camera—that is, in private in his

or her chambers.

If the records are not relevant to the

proceeding, the judge may refuse to allow disclosure or may

narrow the information that must be disclosed.

If the

judge orders disclosure of all or part of the subpoenaed

records, he or she may require as part of the disclosure order

that those who receive the records not reveal their contents

except to persons connected with the litigation.

Once you appear at the court hearing and ask the court

to rule on disclosure, you have satisfied your obligations

under both the confidentiality and the subpoena laws. If the

court issues an order requiring disclosure—either in writing

or orally—you may safely turn over the records. You are not

required to appeal the court’s ruling, even if it appears to be

wrong.

28. Is there any way that I may comply with a

subpoena for confidential documents without

appearing at the proceeding?

Ordinarily, no. Unless the patient consents to disclosure,

you should not release confidential records in advance of the

proceeding to the party who issued the subpoena. Nor

should you use the mail-in procedure to send the records to

the court instead of appearing in person (see question 19)

because that procedure may result in the unauthorized

disclosure of confidential information. Under Rule 45 of the

North Carolina Rules of Civil Procedure, which authorizes

the mail-in procedure, the parties to the proceeding and

their attorneys may have access to the records before the

court orders disclosure.

Use of this procedure therefore

could lead to disclosures not authorized by the applicable

confidentiality law. On the other hand, when the patient

whose records are sought by the subpoena consents to

disclosure, Rule 45 provides a convenient mechanism for a

custodian of records to comply with a subpoena.

29. Do I have to await an order of the judge before

disclosing confidential records, even when the

subpoena is from a public entity, such as a local

department of social services?

Yes. Whether a subpoena is from a public entity or a

private person, mental health facilities ordinarily must await

the order of a judge before disclosing confidential in-

formation.

Most confidentiality laws recognize circumstances in

which disclosure of confidential information is permissi-

ble or even required when necessary to serve some

overriding public interest. For example, to the extent

required by North Carolina’s child abuse reporting law,

a mental health facility must report otherwise confiden-

tial information to a local department of social services.

Unless a legally recognized exception to confidentiality

exists, however, confidential information may not be

disclosed even if the party seeking the information is a

public entity.

POPULAR GOVERNMENT Summer 1999 35

30. Should I keep a record of any disclosure I make of

confidential information?

Facilities operated by or under contract with area au-

thorities or the North Carolina Division of Mental Health,

Developmental Disabilities, and Substance Abuse Services

must document disclosures in the client’s record.

Although

mental health professionals not employed by these facilities

may not be required to document disclosures, they never-

theless should do so in case the propriety of the disclosure

is later questioned.

CONSIDERATIONS IN RESPONDING TO

SUBPOENAS TO TESTIFY

31. How should I respond to a subpoena to testify?

The rules for responding to a subpoena to testify are

essentially the same as those for responding to a subpoena

to produce documents. To comply, the person named in the

subpoena must appear at the proceeding and remain until

the court or the party who issued the subpoena excuses him

or her. As with a subpoena to produce documents, before

the proceeding you may contact the party who issued the

subpoena and ask to be placed “on call” so that you can

reduce the amount of time you will spend in court waiting

to be called as a witness. You also may want to advise the

issuing party of the applicable confidentiality laws and the

limitations on disclosure.

Once you are at the proceeding, it is important to

remember that a subpoena—whether it is for testimony or

for documents—does not authorize you to disclose

confidential information. You may do so only if the court

orders, or the patient consents to, disclosure (see questions

22–27). If you are subpoenaed to testify in court, a judge will

be present to rule on whether you must answer questions

about confidential information. If you are subpoenaed to

attend a deposition, no judge will be present. Consequently,

if you are questioned at a deposition about information

subject to the confidentiality laws discussed in this guide,

and the patient has not consented to disclosure of the

information, you must decline to answer. The party seeking

the information then bears the responsibility of seeking a

court order requiring disclosure.

You also have the option before the proceeding of

contesting a subpoena to testify, according to the same

procedures for contesting a subpoena to produce documents

(see question 20).

The principal ground for contesting a

subpoena to testify is that you cannot be present at the

proceeding. Before contesting the subpoena, however, you

should contact the party who issued it and seek to work out

an alternative time for your appearance.

Before the proceeding takes place, you may be able to

contest a subpoena to testify if you believe that you will be

asked about confidential information. Ordinarily, however,

you are not required to contest a subpoena to testify before

your appearance. You may wait until you are called as a

witness and when asked about confidential information,

decline to answer until the court requires you to do so or the

patient consents to disclosure. If you expect to be

questioned about confidential information, you may want to

consult an attorney about your options.

32. How should I prepare for my testimony?

Mental health professionals may be called on to testify

in a variety of civil, criminal, juvenile, or family law cases,

and on many issues, ranging from whether involuntary

commitment is necessary to whether a patient suffered

psychological harm as a result of personal injury. A clinician

may be called as a fact witness, to testify to what he or she

observed, or as an expert witness, to offer an opinion that is

not within the knowledge of the average person. Because

mental health professionals become involved as witnesses in

numerous ways, specific advice on dealing with attorneys

and preparing for testimony is beyond the scope of this

guide. You should consult other materials for this purpose.

NOTES

1. See G.S. 8-59, -61; 15A-801, -802.

2. See 42 U.S.C. § 290dd-2; 42 C.F.R. pt. 2 (regulations

implementing the federal statute). The regulations apply to

federally assisted organizations and individual practitioners

that specialize in providing, in whole or in part,

individualized alcohol or drug abuse diagnosis, treatment, or

referral for treatment. The regulations govern any

information revealing that a person is receiving, has received,

or has applied for such services. See 42 C.F.R. § 2.11.

3. See 42 C.F.R. § 2.4. Violations may be reported to the

local U.S. Attorney. Violations by methadone programs may

be reported to the regional offices of the Food and Drug

Administration. See 42 C.F.R. § 2.5. In addition to the

restrictions on disclosure, federal law restricts the use of

information obtained by a substance abuse program. See 42

C.F.R. § 2.12(a)(2). Evidence used or obtained in violation of

the regulations may be excluded in both civil and criminal

cases in some circumstances. See United States v. Eide, 875

F.2d 1429 (9th Cir. 1989) (excluding records in criminal

prosecution that were seized in violation of federal

confidentiality laws); Jeanette “A” v. Condon, 728 F. Supp.

204 (S.D.N.Y. 1989) (prohibiting employer from terminating

employee on basis of improperly disclosed urinalysis result).

4. See G.S. 122C-52. Any information, whether recorded

or not, relating to a person served by a facility and received

in connection with the performance of any function of the

facility is confidential. See G.S. 122C-3(9). The law applies to

any individual, partnership, corporation, association, com-

pany, or agency whose primary purpose is to provide services

for the care, treatment, habilitation, or rehabilitation of

persons who are mentally ill, developmentally disabled, or

substance abusers. Those covered by the law include facilities

operated by the North Carolina Department of Health and

Human Services, Veterans Administration facilities, facilities

36 POPULAR GOVERNMENT Summer 1999

(including private facilities) licensed under G.S. 122C,

facilities operated by or under contract with area authorities,

residential facilities, special units of general hospitals, and

twenty-four-hour facilities. See G.S. 122C-3(14).

5. See G.S. 122C-52(e). State law also contains several

privileges that may shield information maintained by mental

health facilities. See G.S. 8-53 (doctor-patient privilege), -53.3

(psychologist-client privilege), -53.7 (social worker privilege),

-53.8 (counselor privilege).

6. See 10 N.C. A

DMIN. CODE 18D.0120, .0118.

7. See, e.g., 21 N.C. A

DMIN. CODE 63.0507 (ethical

guidelines for the practice of social work); American

Association for Marriage and Family Therapy, AAMFT Code

of Ethics (Washington, D.C.: AAMFT, 1991), Ethics Rule 2.1;

American Counseling Association, Code of Ethics &

Standards of Practice (Alexandria, Va.: ACA, 1997), sec. B;

Code of Ethics of the Clinical Social Work Federation

(Arlington, Va.: CSWF, 1997), Ethical Principle III; Code of

Ethics of the National Association of Social Workers

(Washington, D.C.: NASW, effective Jan. 1997), Ethical

Standard 1.07.

8. The unauthorized disclosure of a patient’s con-

fidences by a physician, a psychiatrist, a psychologist, a

marital and family therapist, or another health care provider

constitutes medical malpractice. See Watts v. Cumberland

County Hosp. System, 75 N.C. App. 1, 9–11, 330 S.E.2d 242,

248–50 (1985) (holding that malpractice consists of any

professional misconduct or lack of fidelity in professional or

fiduciary duties, including breach of duty to maintain

confidentiality of patient information), rev’d in part on other

grounds, 317 N.C. 321, 345 S.E.2d 201 (1986).

In some circumstances an attorney who reviews

confidential records without authorization may be subject to

liability. See Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d 838

(1995) (before obtaining judge’s permission, plaintiff’s

attorney reviewed confidential medical records of defendant

that records custodian had mailed to clerk; judge ordered

plaintiff’s attorney to pay defendant’s attorney fees, totaling

approximately $7,000, and prohibited plaintiff from using

records at trial); Susan S. v. Israels, 67 Cal. Rptr. 2d 42 (Cal.

Ct. App. 1997) (attorney read and disseminated patient’s

confidential mental health records that treatment facility had

mistakenly sent directly to him in response to subpoena;

court allowed patient’s suit against attorney for violation of

state constitutional right of privacy); see also North Carolina

State Bar Ethics Comm., Ethics Op. 252 (July 1997)

(attorneys should refrain from reviewing confidential

materials inadvertently sent to them by opposing party).

9. See N.C. R. Civ. P. 45(f); see also G.S. 8-63 (providing

for monetary penalties for violation of subpoena).

10. See N.C. R. Civ. P. 45(a), (b).

11. See North Carolina State Bar Ethics Comm., Ethics

Op. 236 (Jan. 1997) (it is improper for attorney to issue

subpoena if no case is pending or, if case is pending, for time

and place when no proceeding is scheduled). Under Rule

45(a)(1) of the Federal Rules of Civil Procedure, which

regulates pretrial discovery in civil cases in federal court, an

attorney may subpoena documents before trial even if no

deposition or other proceeding is scheduled. As in state court

proceedings, however, before an attorney may use this

procedure, a case must be pending.

In limited circumstances a party may obtain a subpoena

or its equivalent before a case is filed. Thus some agencies are

authorized to issue subpoenas for information necessary to

their investigations. See, e.g., G.S. 15A-298 (authorizing State

Bureau of Investigation to issue administrative subpoenas to

compel carriers to produce telephone records if they are

material to active criminal investigation). In the absence of a

statute authorizing issuance of a subpoena before a case is

filed, a party must ask a judge to issue an order for the

production of records. See, e.g., In re Superior Court Order,

315 N.C. 378, 338 S.E.2d 307 (1986) (holding that court has

inherent authority in some circumstances to issue order

compelling production of records).

12. See N.C. R. Civ. P. 45(e); G.S. 8-59 (providing that

witness served by telephone who fails to appear may not be

held in contempt until he or she has been served personally).

13. See, e.g., Smith v. Midland Brake, 162 F.R.D. 683 (D.

Kan. 1995) (refusing to enforce subpoena when service was

defective). But cf. King v. Crown Plastering Corp., 170 F.R.D.

355 (E.D.N.Y. 1997) (compelling witness to comply with

subpoena although it was not served by hand and holding

that service is sufficient when it reasonably ensures actual

receipt of subpoena by witness).

14. Ordinarily a person who is not a resident of North

Carolina may be required to attend a deposition only in the

North Carolina county where he or she is staying or within

fifty miles of the place of service of the subpoena. See N.C.

R. Civ. P. 30(b).

15. For cases in federal court, the rules differ on how far

a person may be required to travel within North Carolina. See

Fed. R. Civ. P. 45(b)(2).

16. See Minder v. Georgia, 183 U.S. 559, 22 S. Ct. 224, 46

L. Ed. 328 (1902) (establishing that subpoena is ineffective

beyond state lines); see also Wilson v. Wilson, 124 N.C. App.

371, 477 S.E.2d 254 (1996) (holding that it is not contempt to

disobey order entered by court without jurisdiction). Other

devices may be used to direct a witness to attend an out-of-

state proceeding or at least to obtain a witness’s testimony. A

party may use the Uniform Act to Secure Attendance of

Witnesses from without a State in Criminal Proceedings

(G.S. 15A-811 through -816) to compel a witness to attend a

criminal proceeding in the court of another state. The party

must apply for an order from both the state court in which

the criminal proceeding is pending and the state court of the

witness’s home state. See also Jay M. Zitter, Annotation,

Availability under Uniform Act to Secure the Attendance of

Witnesses from without a State in Criminal Proceeding of

Subpoena Duces Tecum, 7 A.L.R.4th 836 (1981) (under

uniform act, out-of-state witness may be required to produce

documents as well as to give testimony). There is no pro-

cedure for compelling a person who is not a party to the case

to attend a civil proceeding in the court of another state.

However, a party may be able to require a person to submit

to a deposition in North Carolina for use in a proceeding in

another state. See N.C. R. Civ. P. 28(d).

POPULAR GOVERNMENT Summer 1999 37

17. See Fed. R. Crim. P. 17(e) (stating rule in criminal

cases); Fed. R. Civ. P. 45(b)(2) (stating general rule for

subpoenas in civil cases and noting possible exceptions). In

cases in federal court, a party also may compel a nonparty to

submit to a deposition in North Carolina for use in a

proceeding in another state. See Fed. R. Civ. P. 45(a)(2).

18. See G.S. 6-51, -53; 7A-314 (witness fees in civil cases).

A person subpoenaed in a civil case has an additional remedy

if he or she has to appear for more than one day. Under G.S.

6-51, if the subpoenaing party does not pay the appearance

and travel fees due after the first day, the party may not

compel the witness to remain. This provision does not apply

if the subpoenaing party is the state of North Carolina or a

municipality.

19. See G.S. 6-51, -53; 7A-314 through -316 (witness fees

in criminal cases). A form application for witness fees is

available from the clerk of court. See Administrative Office of

the Courts, North Carolina Judicial Department Forms

Manual (Raleigh, N.C.: AOC), AOC-CR-235 (Jan. 1995).

20. See G.S. 7A-314(d); N.C. R. Civ. P. 26(b)(4)(B).

21. See G.S. 7A-314(b).

22. See N.C. R. Civ. P. 45(c)(2).

23. There are limits on the copying fees that mental

health facilities may charge. State facilities must charge

uniform fees ($5.00 for up to three pages, $.15 for each

additional page) for the reproduction of client records, which

may not exceed the cost of reproduction, postage, and

handling. See 10 N.C. A

DMIN. CODE 18D.0121. State

facilities may not, however, charge the Attorney General’s

Office, special counsel at state facilities, or indigent clients

who request records to establish their eligibility for

Supplemental Security Income, Social Security Disability

Benefits, Medicaid, or other legitimate aid. With respect to

facilities operated by or under contract with area authorities,

the regulation is silent, except for stating that these facilities

must develop written policies and procedures regarding fees

for reproduction of client records.

24. The federal confidentiality law governing substance

abuse services and the state law applicable to mental health,

developmental disabilities, and substance abuse services

require facilities to develop written policies and procedures

controlling access to and use of records covered by those laws.

See 42 C.F.R. § 2.16 (federal law), 10 N.C. A

DMIN. CODE

18D.0123 (state law). Staff members’ notes or files containing

information that identifies clients either directly or by

reference to publicly known or available information fall

within the scope of these laws and therefore should be

addressed in facility policies regarding the security of

confidential information.

25. State law allows removal of original client records

from an area or state facility in response to a subpoena to

produce documents, or a court order, or when necessary for

civil commitment proceedings. See 10 N.C. A

DMIN. CODE

18D.0121.

26. Assuming that disclosure of the documents sub-

poenaed for a deposition is permissible, various arrangements

can be made for copying them. There is no set rule. For

example, the subpoenaing party may decide to photocopy

particular documents during the deposition; or you and the

subpoenaing party may agree that you will photocopy all the

documents (before or after the deposition) and that the

subpoenaing party will pay your costs.

27. See N.C. R. Civ. P. 45(c); G.S. 8-44.1. The term

“public record” is not defined in Rule 45. Although the rule

may apply to public records without limitation, other rules

contain a more limited definition of “public record.” See

generally 2 Kenneth S. Broun, Brandis & Broun on North

Carolina Evidence 174 & n.32 (5th ed. 1998) (N.C. Evid. R.

902, which allows introduction of certain records without

authentication, applies to limited kinds of public records).

28. See N.C. R. Civ. P. 45(c)(1) (stating grounds for

quashing or modifying subpoena).

29. See generally State v. Love, 100 N.C. App. 226, 395

S.E.2d 429 (1990) (quashing subpoena), vacated sub nom.

Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995) (ruling that trial

court erred in quashing subpoena without first reviewing

requested records to determine their relevance).

30. See Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814

(1984) (quashing subpoena).

31. See, e.g., United States v. Bryan, 339 U.S. 323, 70

S. Ct. 724, 94 L. Ed. 884 (1950); Desmond v. Hachey, 315

F. Supp. 328 (D. Me. 1970).

32. For example, the federal law governing education

records permits disclosure of student records in response to

a lawfully issued subpoena if certain requirements are met.

See John Rubin, “Subpoenas and School Records: A School

Employee’s Guide,” School Law Bulletin 30 (Spring 1999): 1;

20 U.S.C. § 1232g; 34 C.F.R. pt. 99 (implementing regu-

lations).

33. See 42 C.F.R. § 2.61(b) (“The person [who receives a

subpoena for substance abuse records] may not disclose the

records in response to the subpoena unless a court of

competent jurisdiction enters an authorizing order under

these regulations”); G.S. 122C-52 (“except as authorized by

G.S. 122C-53 through -56, no individual having access to

confidential information may disclose this information”).

G.S. Chapter 122C requires disclosure when a court of

competent jurisdiction issues “an order compelling

disclosure” but does not authorize disclosure of confidential

information in response to a subpoena. See G.S. 122C-54(a).

Although these federal and state laws do not permit

disclosure in response to a subpoena alone, they authorize

disclosure in a number of situations whether or not the

disclosure is authorized by the patient’s consent or a court

order. For example, results of examinations of clients facing

district court hearings for involuntary commitment must be

furnished to the client’s counsel, the attorney representing

the state’s interest, and the court. See G.S. 122C-54(c).

Therefore, on receiving a subpoena for confidential in-

formation, you should consult the applicable confidentiality

law to determine whether some circumstance other than the

subpoena authorizes disclosure.

34. See 42 C.F.R. § 2.64. In limited circumstances in-

volving a criminal investigation or prosecution, notice to the

patient may not be required. Notice to the holder of the

records is still required, however. See 42 C.F.R. § 2.65.

38 POPULAR GOVERNMENT Summer 1999

In contrast to 42 C.F.R. pt. 2, the federal law governing

student records requires that the school in possession of the

records being sought make a reasonable effort to notify the

affected person before disclosing the records. See Rubin,

“Subpoenas and School Records,” 8–10; 20 U.S.C. §

1232g(b)(2)(B). Commentators differ on the best method of

ensuring that notice is given to the subject of confidential

records. See ABA Standards for Criminal Justice: Discovery

and Trial by Jury § 11-3.1 commentary at 62 n.13 (3d ed. 1996)

(taking position that it is not practicable for party seeking

records to notify interested third parties because it may not

be evident who interested parties are).

35. The parties to the proceedings and even the

organizations that maintain the records may not have as

strong an interest in protecting the information as the sub-

ject of the records does. The parties to the case may not even

have standing to object to production of the records if they

do not have any proprietary or confidentiality interest in the

records. See United States v. Tomison, 969 F. Supp. 587 (E.D.

Cal. 1997); 2 G. Gray Wilson, North Carolina Civil Procedure

102 (2d ed. 1995); see also New York v. Weiss, 671 N.Y.S.2d 604

(Sup. Ct. 1998) (holding that prosecutor did not have

standing to object to subpoena for third party’s records but

court had inherent authority to limit release of records that

had no bearing on trial).

36. In limited circumstances, confidential information

should not be disclosed in response to a subpoena even with

the patient’s consent. Under 42 C.F.R. pt. 2, records of

substance abuse patients may not be used to initiate or

substantiate criminal charges against them without a court

order compelling disclosure. See 42 U.S.C. § 290dd-2(c);

42 C.F.R. §§ 2.12(a)(1), 2.12(d), 2.65. Even if the patient signs

a consent form authorizing disclosure, no information

released by the facility may be used in a criminal

investigation or prosecution of a patient unless a court

order has been issued under the special circumstances set

forth in the federal regulations.

37. See G.S. 122C-52; 10 N.C. A

DMIN. CODE

18D.0118(a).

38. See Sultan v. State Board of Examiners of Practicing

Psychologists, 121 N.C. App. 739, 745–46, 468 S.E.2d 443,

446–47 (1996); McGinnis v. McGinnis, 66 N.C. App. 676, 311

S.E.2d 669 (1984).

39. Any review of information that is protected by the

federal confidentiality law governing substance abuse

patients must be held in the judge’s chambers or in some

manner that ensures that patient-identifying information is

not disclosed to anyone other than a party to the proceeding,

the patient, or the person holding the records, unless the

patient requests an open hearing. See 42 C.F.R. § 2.64(c); see

generally Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989,

94 L. Ed. 2d 40 (1987) (holding that defendant in criminal

case may obtain in camera review of confidential records

in possession of third party); Zaal v. State, 602 A.2d 1247

(Md. 1992) (holding that court may conduct review of records

in presence of counsel or permit review by counsel alone,

as officer of court, subject to restrictions protecting

confidentiality).

40. See State v. Adams, 103 N.C. App. 158, 161, 404

S.E.2d 708, 710 (1991) (upholding trial court’s order

prohibiting party from examining medical records of Forsyth-

Stokes Mental Health Center or cross-examining custodian

of those records). See also 42 C.F.R. § 2.64, which sets forth

specific criteria for determining whether good cause exists

to disclose the records of a substance abuse patient.

41. A court order authorizing disclosure of the records of

a substance abuse patient must limit disclosure to the parts

of the patient’s record that are essential to fulfill the order

and to the recipients whose need for information is the basis

of the order. See 42 C.F.R. § 2.64(e).

42. The right to appeal an order requiring compliance

with a subpoena is beyond the scope of this guide. See

generally 9A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure Civ. § 2466 (2d ed. 1995). If you want

to contest a court’s ruling requiring disclosure, you should

consult an attorney.

43. See N.C. R. Civ. P. 45(c) (“The copies of the medical

records so tendered shall not be open to inspection or copy

by any persons, except to the parties to the case or

proceeding and their attorneys in depositions. . . .”). But cf.

Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d 838 (1995)

(sanctioning attorney who, without judge’s permission,

reviewed confidential medical records that records custodian

had mailed to clerk of court).

44. See G.S. 122C-54(h); G.S. 7A-543; 42 C.F.R. §

2.12(c)(6). For a further discussion of the child abuse

reporting law, see Janet Mason, Reporting Child Abuse and

Neglect in North Carolina (Chapel Hill, N.C.: Institute of

Government, The University of North Carolina at Chapel

Hill, 1996).

45. See 10 N.C. A

DMIN. CODE 18D.0324, .0213.

46. Rule 45 of the North Carolina Rules of Civil

Procedure describes only the procedure for contesting

subpoenas to produce documents; it does not describe the

procedure for contesting subpoenas to testify. Presumably,

however, a subpoena either to produce documents or to

testify may be contested according to the procedures set

forth for subpoenas to produce documents. See Wilson,

North Carolina Civil Procedure, at 97.

47. See, e.g., Barbara A. Weiner and Robert M. Wett-

stein, Legal Issues in Mental Health Care (New York: Plenum

Press, 1993), chap. 11; S. L. Brodsky, Testifying in Court:

Guidelines and Maxims for the Expert Witness (Washing-

ton, D.C.: American Psychological Association, 1991).