When You Receive a Subpoena: A Therapist Step-by-Step Guide
A subpoena arrives and for most therapists, the immediate reaction is anxiety. Do I have to hand over my notes? Do I have to testify? Can I say no? What do I do first?
The short answer: receiving a subpoena does not automatically mean you must disclose anything. But the steps you take in the next 24-72 hours matter enormously.
Step 1: Do Not Comply Immediately
A subpoena is a legal demand but it is not a court order. You have rights and obligations that exist before compliance, including your client’s right to confidentiality and your ethical duty to protect it.
Your first step is always the same: do not release records or appear to testify until you have taken the steps below.
Step 2: Notify Your Client Immediately
In most jurisdictions, you are required to notify your client that a subpoena has been received before complying. Your client has the right to consent to the release of records, object through their own attorney, or seek a protective order.
Contact your client promptly. Do not wait. If you cannot reach them, document your attempts.
Step 3: Consult an Attorney
The attorney who issued the subpoena does not represent your interests. If you do not have an attorney, contact your malpractice insurance carrier immediately — most provide legal consultation as part of coverage.
An attorney can help you determine whether the subpoena is legally valid, whether privilege applies, whether a motion to quash is appropriate, and what you are actually required to produce.
Types of Subpoenas
Subpoena for Records (Subpoena Duces Tecum)
Requests that you produce documents — typically your client’s treatment records. You do not have to appear in person. But you must still assess whether privilege applies before releasing anything.
Subpoena to Testify (Subpoena Ad Testificandum)
Requires you to appear and give testimony in a deposition or in court. You may still assert privilege on behalf of your client when specific questions are asked.
Court Order
A court order is signed by a judge and carries more weight than a subpoena. Even then, the scope matters — produce only what is specified, and consult an attorney before complying.
Asserting Privilege: What to Say
Psychotherapist-patient privilege protects the confidentiality of therapy records in most legal proceedings. The privilege belongs to the client, but you have an ethical and legal duty to assert it on their behalf unless they waive it.
If you receive a records subpoena without client consent, respond in writing:
I have received your subpoena for the records of [Client Name]. I am unable to release those records without a signed authorization from my client or a court order, as they are protected by psychotherapist-patient privilege. I am notifying my client of this subpoena and will await further direction from counsel.
Do not release anything until you hear from your client, their attorney, or until a court orders disclosure.
What If Your Client Consents?
If your client provides a valid written authorization, release only what the authorization specifically covers. You may be able to provide a summary rather than raw process notes — know your state law. Psychotherapy notes kept separate from the medical record often have additional protection even with a general authorization.
Preparing for Testimony
- Review your notes thoroughly before testifying
- Answer only what is asked — do not volunteer information
- Say you do not recall when you genuinely do not — do not guess
- Assert privilege when questions go beyond what your client has authorized
- Bring a copy of the subpoena and your client’s authorization if applicable
- Request a recess if you need to consult with your attorney
What to Document
- Date and time the subpoena was received and how it was served
- When you notified your client and how
- When you consulted your attorney or insurance carrier
- What records were released (if any), when, and to whom
- Any objections filed or responses submitted
The Full Clinical Tool
The Therapist Subpoena Response Guide gives you a complete step-by-step decision tree, scripted language for asserting privilege, documentation templates, and guidance for when clients consent, object, or cannot be reached.
Get the Therapist Subpoena Response Guide →
Frequently Asked Questions
Do I have to respond to a subpoena at all?
You must respond — but responding does not mean complying. You can assert privilege, notify the issuing party that records are protected, or file a motion to quash. Ignoring a valid subpoena can result in contempt of court.
What if the subpoena is for a client who is suing their abuser?
Your client may want you to testify on their behalf. They may waive privilege and provide written authorization. Still consult with your attorney about scope and how to protect your client’s interests while testifying.
Can I refuse to testify about what my client told me?
Yes — in most cases, you can assert psychotherapist-patient privilege in response to questions about therapy content. The privilege may be waived by your client or overcome by a court order. Know the law in your jurisdiction.
What is the difference between a subpoena and a court order?
A subpoena is issued by an attorney. A court order is signed by a judge and is harder to resist. Consult an attorney before complying with either.
Does my malpractice insurance cover legal costs from a subpoena?
Most professional liability policies include some coverage for legal consultation related to subpoenas. Call your carrier first — before hiring outside counsel on your own.
By Kristen McClure, MSW, LCSW | TherapistWorksheet.com
This post is for educational purposes and does not constitute legal advice. Consult a licensed attorney in your jurisdiction for guidance on your specific situation.