Show Notes

Kayla: Welcome back to the Designer Practice Podcast and I’m your host Kayla Das.

What if you received a court order to produce client records? Would you know what to do?

In today’s episode, Jean Eaton, privacy expert and owner of Information Managers will discuss how to prepare client records for a court order.

Hi, Jean. Welcome to the show. I’m glad to have you here again.

Jean: I’m happy to be with you, Kayla. Thank you.

Kayla: You know, for people who haven’t listened to the episode, you were actually one of my first guests. But if they haven’t met you or listened to that episode, can you introduce yourself, where you’re from, and just a little bit about your business and what you do?

Jean: I’m happy to. Thank you, Kayla. My name is Jean Eaton. I am the practical privacy coach and practice management mentor with Information Managers. So my history and my background is as a first responder. I’ve worked in the health care system. I am a certified health information management professional. I’ve been a director of health records departments and hospitals across Canada and for the last 20 years or more. I’ve been focusing working with independent health care providers in their practices, and that really is the place where I really like to be. I’d like working with therapists and nurse practitioners and physicians, helping them to develop and grow their independent practice. I help them with privacy compliance and practice management best practices so that you’ve got an efficient and effective practice management for your success.

Kayla: And for anyone who hasn’t listened to Jean’s previous episode, it is episode 5, When your Client Asks for a Copy of Their Therapy Record. So feel free to also listen to that after you listen to this episode.

Jean, let’s talk about Court orders. What is a court order? And how would a therapist or coach know that they’ve received one?

Jean: The very first important thing that you’re going to do for every access request or disclosure request is to make sure to read the information carefully. And that’s when you’re going to see that the patient hasn’t actually authorized the order or the request, that it will be signed by somebody else. So it could be a number of people. It could be directly from a judge’s order. It could be the investigating police services. It could be district attorney. It could be even a lawyer’s office. And depending on which legislation that you are in, which jurisdiction that you follow and under what circumstances that you receive the information on which legislation it could be any number of permutations and combinations.

So the most important thing is to take your time and read the information very clearly and don’t panic. Unless there is an immediate life-threatening circumstance, you can take your time to verify all of the information and feel comfortable that you have the proper response so that you can benefit your patient and your business as well.

Kayla: And I know that you work in Canada. Because we’ve recently had a guest, Dr. Tracy Masiello. Episode 66. Now, she is from the U. S. and we just want to make sure that listeners know that you’re speaking from the Canadian perspective when it comes to court orders.

If a listener received a court order here in Canada to produce the patient’s records, what should they do? Like, what steps should they take or what should they take into consideration when responding to that?

Jean: Sure. So, the first thing, of course, is to acknowledge that I am not a lawyer and I don’t play one on a TV or on a podcast. But these are my recommendations to you based on my experiences, as a health information management professional, as a director of health records, where I have processed and been subpoenaed to appear in court on many occasions.

So, the first thing that you want to do is to very clearly identify the patient. So the subpoena should have enough information on it so that you can clearly identify which patient is the subpoena referring to. So if you’ve got any doubts at all, if it’s not the full name, if the date of birth is a little bit different. If you’ve got two people with the same name, you’ve got two Tom Jones. You need to be very clear about clarifying which patient the information is about. If there’s any question about whether or not you have the right patient record, do go back to the person that has issued you this document and identify who the responsive contact person is and clarify with them which patient it is. So they might need to reissue the document if you find that there is something different.

So identify the patient and then secure the files. Make sure that you’ve got all of the information about that patient. It might be paper records, it might be scheduling information, might be billing information, check your emails, check your computer network system. Check all the places that you might have any information about that patient and then secure that information. So make sure that everybody else is locked out of that, that you’ve kept it in a secure location, the paper records for you to review in more detail.

Then take a breath, unless it’s an imminent life-threatening circumstance, you’ve got time to be able to do this properly and that’s what you want to do. You want to review the document that you’ve received and be really clear about who authorized this document. Where is this document coming from? One of the key things that you want to check in the document is which jurisdiction is the document authorized from. So, if you’re a therapist working in Alberta and you get a court order from a court in B. C. That’s a red flag. That’s an obstacle that you need to address and you need to contact your lawyer to give you some additional guidance about whether or not you could should or how you would respond to any jurisdiction outside of where you practice. Okay, so that’s an important distinction. Does that make sense, Kayla?

Kayla: It does. It actually leads me to another question. So a lot of therapists will work across provinces. So, they might be living in, say, Alberta, but they might practice, say, in B. C. or Ontario, or really anywhere like that. So if they receive a court order from a province that they are practicing in, but they don’t reside there, would that still be similar?

Jean: I would want to check with the lawyer before you release those records. So, having things across jurisdictional boundaries really complicates things. So what I would suggest that you do as you’re starting to process this request is get a list of questions together. You don’t have to call a lawyer for each individual step. Go through, from top to bottom and then call a lawyer and say, this is what I’ve determined. What should I be aware of? And what are your recommendations about?

So, I always talk about having a Rolodex of friends. So having a lawyer that is going to advise you in your practice, it’s something that every therapist, even working individually, working as a solopreneur, you should have. And do that today. Even if you don’t have a court order in front of your desk today. Go today and find a lawyer that you can have a conversation with as needed. So you can talk with some lawyers that are recommended by your college, your professional association, somebody that you approach individually, but you want to have a lawyer on your rolodex. So, identify a lawyer who has experience working in health care in your jurisdiction that you can have an introductory meeting for. Most lawyers will offer you a 15-minute introductory meeting at no cost, so that you can say if a situation like this comes up, you’ve already had that meet and greet. You’ve already determined that this is somebody that you can work with, so that you can quickly contact them for these one of types of questions

Kayla: Fabulous. So, Jean if a therapist is creating that Rolodex of professionals, should they find a lawyer in that province as well?

Jean: I would suggest, yes. Lawyers are specialists in their field in their jurisdiction. So, if you’ve got a question outside of that jurisdiction, you want a lawyer who is familiar with that legislation.

Kayla: Great. That’s great information. When it comes to court orders. Do you have any common scenarios that you see therapists navigate or really any healthcare professional navigate for that matter when receiving court orders?

Jean: Sure thing. So unfortunately, a lot of court orders come across my desk at four o’clock on a Friday afternoon of a long weekend. And these tend to be the inflammatory situations. It is a custody situation, that happens on a frequent basis. These tend to be those things that somebody has responded to a particular situation. So most important thing is take a deep breath. Make sure that you read all of the information and determine that that one key criteria. Is this a life-threatening circumstance? If it is, then you need to respond to it right away. If not, take another deep breath and prepare the information, secure the information and then respond to it next week. So we want to respond as quickly as possible, but you need the time to be able to do this properly.

So, if it is a life threatening circumstance, you need to identify the specific information in this timeframe. So focus on the immediate information, not the intake assessment that you did five years ago. If this is an immediate situation, they want a very defined amount of information. What’s the most recent contact information? Do they have expressed wishes to disclose or not disclose? Is there an expression of harm to self or others? That’s the type of information that you’re going to want to focus into very quickly. So that is the number one scenario, that thing that happens that is a life-threatening circumstance and you may not have a lot of time to be able to respond to that information. You should be able to go back to your policies and procedures, your written documents in your practice. And there should be a decision tree in there to help you. How are you going to define what is going to be released and what is that process? So you don’t want to do this for the first time when you are in a panic. So I’m going to share a couple of common scenarios and you can use this as kind of a playbook in your practice. You can pretend if this happened today in this circumstance, what would I actually do? And not just a mental exercise. Actually, get the pen and paper out. Print the documents and go through all of these steps. So, you’ve got some practice and then share it with somebody else in your practice. So, if you’ve got a couple of therapists, if you’ve got some admin support staff to help you with that, make sure you do this as a team exercise. Nobody wants to get flat footed and have to respond to this in real time being the first time that you’ve ever done this. So take a look at these scenarios and do them as a tabletop exercise so that you can be prepared for that.

So, another common scenario that happens is that a peace officer, police services of some kind, will come and deliver a piece of paper to you. And that might be a court order. And there are generally two different types of court orders. So one is called a subpoena ducus tecum, which simply means it’s a subpoena to produce records. The other one is a subpoena to appear in court, in which case you need to have pre-prepared all of the records and that you will share them or provide them as evidence in the court scenario. So let me talk about those two different types of scenarios.

The subpoena ducus tecum, I like saying that word because it’s kind of fun, but is a subpoena to produce records. So, you’re still going to go through all of the key steps to make sure that you’ve clearly identified the patient, that you’ve collected all of the information that has been requested, and oftentimes when we get requests for information it says all records. And patients and lawyers don’t know what all records means because they haven’t actually looked at your records. So try to have a conversation with the person that has requested the information. And further detail exactly what was it about. Is it about this incident in this time period? Is it about assessments? Try to narrow it down if you can.

Then you’re going to make sure that you’ve got all of the records. You’re going to create an index, an inventory of all those things that you have. You had the therapist notes on this date, you had the email conversation on this date, you had a letter on this date. Create an inventory of all of that type of information.

Then review each of those documents and one, see if it is responsive to the request that is, does it answer the question that you’ve been asked to provide and two, review the information what we called line by line. So you’re going to review the information and ensure that the information in the document refers to that individual and nobody else. So, if there is a conversation in your documents to say that you had a meeting with the patient on this date, and this is the conversation, then that generally is going to be included in the records. If you had a conversation with the patient’s parent, and the patient was not there, then that information with the parent typically would not be included in that document, that would be severed or left out.

When you sever the information, you have a responsibility to identify the reasons or the rationale why you’ve severed that information. So you will have this index of the information. You will say line item one is the conversation with the patient it’s included. Line item two is not included. And the reason why it’s not included and the reason you have to find the exception in the legislation. So you have to read the applicable legislation and you would say this information is accepted under Health Information Act section X, Y, Z. And then you not included in the patient records. Every time that there is a piece in the records that you’re not going to include, you’re going to sever it, and you’re going to include a footnote about why it was not included. It’s just not your gut instinct.

And this is a problem that a lot of people have because we want to protect the patient. We want to guide the patient, perhaps about what information is going to be disclosed. So, it puts the patient in the best light. And you have to be very cautious about your decisions to include or not include the information. You want to make sure that it’s responsive and that you have the legal authority to disclose the information based on the subpoena or the court order that you’ve received. And for no other reason. You cannot put your judgment or your filter on it to say, I’m going to include this because it puts the patient in a good light, but I’m not going to talk about this one because that was a really bad day. She said some things that probably isn’t going to help her. That’s not your decision to make. It must be a decision based in law.

Kayla: That makes complete sense.

Jean: It’s hard sometimes. And that’s why you want to take the time needed to do this right. And you may want to discuss with the lawyer, whether or not you’ve got the appropriate legal, references appropriately. This is not an easy task, so make sure that you take the time to do this right.

So, if you’ve got a subpoena ducus tecum you’ve prepared the record, and you will make a copy for yourself, a complete copy, and a copy for the court that’s requested the records. And you’re going to keep your complete copy in some other place than the patient record. So, as a business owner, you should have an important place, a safe place that you’re going to keep all of your important business records. And you’re going to keep a copy of that patient record securely kept in an envelope that’s been sealed, so that you can keep that secure. Because you may get called to court at some point to present that information.

So, if you get called to court, what you will be requested to do if it’s a subpoena to provide records in court as opposed to your personal testimony as a therapist in your relationship. If you’re called to present records, you will be asked to explain what type of records were kept. How did you retrieve them? Was it on paper? Was it electronic? How did you prepare the electronic documents? You will request permission of the court, probably, to produce the records in court paper rather than bring a copy of your electronic EMR on your laptop. Paper is really what most people want to see most of the time, although that’s a trend that’s changing. And you will be asked questions about how those records were created. You might get asked to restate those records. So as a director of health records, I would be called into court to present evidence on records, and I would be asked to interpret the doctor’s handwriting or interpret the abbreviations that the doctor had written. So, if it was your own notes, you have to read your own writing, but if you have to read somebody else’s writing, make sure that you practice that before you actually go to court.

If you are going to court to produce records, you’re going to talk about how the records were produced, not have a conversation about what do you think the therapist meant when they broke this down? That’s not your job. That’s not your role in the court in this transaction. Your role is just to produce the record.

Okay, so we’ve talked about that life threatening circumstance. We’ve talked about a subpoena duces tecum for records, we’ve talked about a subpoena to produce your records in court.

The other common scenario is a disclosure that looks pretty formal. Maybe it comes from a social worker or Child’s Aid Society or some other quasi-judicial kind of important looking document. This is where it’s really important to make sure that you have the legal authority to disclose the information. And again, you might want to call a friend and speak with the lawyer to verify that information.

The other thing to remember is, if the patient themselves consents for you to release the information to somebody else, say the social worker, then you can use that patient’s consent as your legal authority. And you don’t have to rely on what was the legal authority of the social work to request that information. It’s okay for you to contact the patient directly and say “Kayla. I just got this letter from some organization here, and they’re requesting some information about you. Could you come into the office so that we can discuss it? We can review the information together.” If that’s appropriate for you to do, that’s okay to do. We’re allowed to go out and talk with our patients and have that conversation. So don’t forget about that. A patient’s consent will trump anything else, essentially. So, if you are worried about what information can be released, does the patient really understand this? You can have that conversation with the patient. There’s no reason why you can’t.

Kayla: That’s a really good reminder because I think sometimes, we’re so worried about potentially getting sued based on releasing information. But if we have informed consent and written consent from the client to provide those records to whomever it is that they provide consent for, that that, trumps all other requests.

Jean: Yeah, it certainly is makes things easier. It can make you as an individual, particularly if you’re the providing therapist a little bit more comfortable in the scenario. It takes time. But we want to be able to do it right. You can’t get the information back if you’ve already released it outside of your virtual four walls. So that’s something that you want to remember and to get it right. And take the time that you need to get it right the first time.

All of this should be in your written policies and procedures. So, find some scenarios that are meaningful to you. Things that have happened in your practice or things that you think could happen in your practice. And practice those two or three or four scenarios so that you get a really good system in place, and that you can document that well. And then don’t worry about those things that might happen once in a career when it happens, you’ll deal with it.

Kayla: That’s a great tip. You sort of touched on this question, but is there ever a time when therapists should consider not responding to a request of someone’s file?

Jean: You must always respond. You might not always give the information that has been requested. But you must always respond. That is a requirement. And that’s just being a good person. But it is a legal requirement, you must respond. So if you get really nervous, and you’re not sure what to do with this information is taking a real long time to respond to get the information together, it’s okay to contact the person that’s requested the information and said, “Listen, this is going to take us longer than you asked us to provide it for Monday morning”. And let them know that information. So being responsive is a really important step. And of course, you’re going to make sure to document each of those conversations, for your business purposes.

Kayla: With court orders, how do we know one is a legitimate court order versus someone, say a lawyer or a police officer or just someone wanting to request someone’s file. How do we know it’s a legitimate court order?

Jean: That’s a really good question. For a couple of reasons. One, you must have always asked. You want to trust but verify. There should be contact person information on the piece of paper that you’ve got that you can call it might be a lawyer’s office. It could be the clerk of the court. It’s okay to call the information number at the police station to find out if Constable XYZ really does work there. And you could and should take those steps. And if you, of course, take those steps, you need to be able to document it.

Something that I have found in my personal experience recently since the pandemic, it is harder to actually get somebody at the court office because we’ve made things online and it just makes it harder and harder to actually get to speak to the clerk of the court. It might actually require you to get in your car and go to the court office. So, take those steps.

And then, of course, that’s one of the good things that we can do with having our lawyer is to give them a copy of your order and say, I’m not sure if this is valid. How do I figure that out? And they should be able to help you with that as well. The step is important. How you get there might be a couple of different options.

Kayla: This scenario comes up a lot in communities that I’m a part of when it comes to therapist, either receiving a court order or a request in general is: what if a client was never a client, yet you receive a court order to disclose records or somebody requests information, maybe not a court order, but they are requesting information. But this person has never set foot in your office. How do you respond?

Jean: Again, make sure that you have verified the requester and, that there is a valid reason to do the request. The court, the police, the lawyer’s office are not going to arbitrarily ask for records. We have to rely on the ir professionalism. So contact that person and say, I’m not finding any records for these individuals to verify. You know the name, the spelling, the date of birth. Make sure that you know you really don’t have a record. And then you can reply verbally, but also in writing, because you need to be able to document that you’ve replied to say that you’ve reviewed your records from this time period, and you don’t have any responsive records for this named individual.

Kayla: Do you have any additional advice, insights, or tips for listeners regarding preparing or responding to a court order?

Jean: Absolutely. The most important thing is to make sure that you’ve got some written policies and procedures around this. And use the examples that you have in your practice or that you’ve had in a practice similar to what you’re doing laid out as far as your policies and procedures. So if you need some assistance about those written policies and procedures, I have a document about how to prepare a court order. And I have the policy and procedure templates that you could have for your entire business, if you don’t have those records in place. So if you just need that little bit more information, you can go to our download for how to prepare for a court order.

If you’re just starting your practice or you haven’t actually gotten around to writing all those written policies and procedures because, yeah, that’s really not your jam, I’m here to help you. It is my jam. I love helping practices get started, so I have templates that will help you with your policy and privacy compliance for your entire practice, including how to prepare records for a court order and other routine access and disclosure requests.

Kayla: Amazing. So, if you’d like to get access to Jean’s ebook called Preparing a Patient Record to Comply with a Court Order, check out kayladas.com/jeaneatonebook

That’s kayldas.com/jeaneatonebook.

Or you can simply scroll down to the show notes and click on the link.

Jean, thank you for joining us again on the podcast and sharing your knowledge and wisdom about preparing a court order here in Canada.

Jean: Thank you, Kayla. It’s wonderful to be with you, and I hope you have a fantastic year.

Kayla: Thank you, everyone, for tuning in to today’s episode, and I hope you join me again soon on the Designer Practice Podcast.

Until next time, bye for now.

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