Can Medical Records be Subpoenaed in Arizona Child Custody Cases?
Can medical records be subpoenaed in child custody cases in Arizona? In short, yes, they can if they’re issued in one of four ways. So, in Arizona, the statute provides that there are four ways to issue a valid subpoena for medical records. One, if the patient authorizes it, which we’re just going to assume in a child custody case that if you’re trying to obtain the medical records of the other parent, they’re not going to say yes. Two, through the court, which is what would apply in this situation. Three, through the healthcare licensing board, and then four, through a grand jury if there’s a criminal investigation. So, let’s focus on the court issuing the subpoena.
In a child custody case, and I’m going to focus on the parents here, not the children, there are many times when one parent is alleging that the other parent is not fit in some way, and they would like to prove that by obtaining that person’s medical records. And so, not just how they are physical, meaning do they have some disease or problem, but the mental health records as well. So, if the other parent was seeing a licensed professional counselor, or a psychologist, or even a psychiatrist and maybe receiving medication or psychotropics in some way, most people think if I’m going to spill my guts to a therapist, no one’s ever going to see these records. And unfortunately, that’s just not true. If your healthcare provider receives a valid subpoena through the court, they are compelled to provide the records to the court.
There are two things you can do if you don’t want to give up your records, and I’m just going to assume that both parties have attorneys in this situation. Let’s say you’re in a child custody dispute, and the other parent wants your medical records to be used against you in some way. It will be up to your attorney to argue that the records are unnecessary. Now, if the judge says no, they are very necessary and then issues the subpoena from the court, your healthcare provider, or you are going to have to provide those records. But what needs to happen then is that your attorney then needs to make certain that they’re kept confidential or under seal. That way, they can’t be disseminated to a third party or discussed potentially without protections.
Mental Health of a Parent is Important in a Child Custody Case
I guess it is a breach of trust when someone goes in to speak to a therapist. But unfortunately, the mental health status of a parent is important in a child custody case. And so, many courts think, no, these are important. Last note, many people ask me, well, doesn’t HIPAA protect me from giving up any of my records? And the answer to that is no. I find most people don’t understand HIPAA. If a valid subpoena has been issued for your medical records through one of those sources that I stated earlier, there is no objection via HIPAA, it doesn’t apply here. So, you cannot stand behind that and try to shield any attempt to get your records. Keep in mind that even in current therapy, if you’re speaking to someone, those notes and those records could potentially end up in the hands of the other party and used against you in some way.
Are Medical Records Confidential in an Arizona Child Custody Case?
Are medical records confidential in child custody cases? First, how would one party obtain the medical records of a parent? I’m not going to talk about medical records for children. I’m just going to keep it to the two parents involved. So, if you’re involved in a child custody dispute, you are obviously in court before a judge, and many times the other party will want the medical records of the other parent to use against them in some way or disprove their mental fitness. Medical records can be subpoenaed via a court in Arizona. If you just get a letter from the opposing attorney saying, please provide us with your medical records, you can ignore that.
Ways that Medical Records can be Validly Subpoenaed in Arizona
There are four ways that medical records can be validly subpoenaed. With patient authorization, which I’m going to assume you’re not going to give if you’re in a child custody dispute, through a court, which is what would apply here, a grand jury if there’s some criminal investigation and then from a licensing board. In this case, if you just get the letter from the attorney with nothing else, you can essentially ignore that. Now, they can go to the judge and say, judge, we need the medical records of the other parent to prove some problem. And then, the judge would be the one that would determine whether to issue the subpoena or not. If the judge does issue the subpoena, then you would have to comply and provide the medical records. Now, those records could include mental health treatment, which is, I guess, a surprise to most people.
Are Medical Records Confidential?
If you were seeing a marriage and family therapist or a licensed professional counselor or a psychologist, or even a psychiatrist, if you were getting psychotropics in some way, all those records are considered medical records, and they could be, or you could be forced to disclose those to the other party. Now, are they confidential or not? Well, if you lose the argument and must give up the records, you absolutely need to make sure that your attorney is making certain that they are confidential. So, are medical records confidential, meaning you don’t have to give them up to the other side? No, that’s not the case. Can they be kept confidential, meaning they can’t be disseminated to third parties, or there’s some discretion in the court when discussing them? Yes, they can be, and that’s something that your attorney is going to have to make certain they argue with the judge and keep confidential to some extent.
Many people will then ask me doesn’t HIPAA protect me from giving up any of my records. The answer to that is no. I don’t think most people even understand what HIPAA is, they just use it as a word. But in this scenario, not. If the judge issues via the court the medical records subpoena, you’re going to have to provide it. I mean, if you refuse to provide it, you’re going to be held in contempt, most likely at some point. So, unfortunately, even though you’re in a trusted relationship with a therapist, those records could potentially be given up to the other side and, I guess, even potentially used against you in some way. I mean, that’s unfortunate, and most judges don’t want to see that happen. But if there is some legitimate reason to get the medical records of the other spouse or parent, I should say you may have to give them up. So, are medical records confidential? No, not really, if you must give them to the court via a valid medical record subpoena.
How Can a Lawyer Protect Your Medical Records?
As you can see, medical records consist of some confidential records in Arizona and across the country. This means you have the absolute right to determine who can access such records. However, there are some instances where you might be required to present such documents to a court for determination. You need an experienced attorney who can protect your right.
At Chelle Law, we understand your rights regarding the privacy and confidentiality of medical records. We will help you to protect your right from infringement and any prejudice you’re likely to face. Contact us today for a free case evaluation.