A request for a client’s therapy records can put a therapist in a difficult position, especially when it comes from an attorney in a divorce or custody case. The therapist must respond appropriately to legal process while protecting confidential information.

The first question is how the request was made. A lawyer’s letter, a subpoena, and a court order carry different legal consequences. HIPAA compliance is only part of the analysis. South Carolina confidentiality law and special protections for psychotherapy notes may also apply.

Start by identifying the request

An attorney’s letter, email, or telephone call does not, by itself, authorize disclosure of confidential therapy records. For an ordinary litigation request, obtain a valid written authorization unless another legal basis permits or requires disclosure. Review the authorization’s scope, recipient, expiration, and any special requirements for the records involved. LII / Legal Information Institute

A subpoena requires prompt attention, but an attorney-issued subpoena is different from a judge’s order directing disclosure. Do not ignore it or assume it authorizes release of the entire file. HHS explains this distinction in its guidance on court orders and subpoenas. HHS.gov

What makes a subpoena HIPAA compliant?

For a HIPAA-covered provider, a subpoena unaccompanied by a court order generally requires additional safeguards under 45 C.F.R. § 164.512(e).

One route is satisfactory written assurance, with supporting documentation, that the patient received adequate notice, the objection period expired, and no objections remain unresolved. Sending a notice letter alone does not complete this route.

Another route involves satisfactory assurances of efforts to secure a qualified protective order. That order or stipulation must restrict use of the information to the proceeding and require its return or destruction when the proceeding ends. The regulation also allows a provider to make the required reasonable efforts itself. LII / Legal Information Institute

These safeguards can permit disclosure under HIPAA. They do not resolve every state confidentiality or privilege issue, and HIPAA does not itself require production merely because these conditions are satisfied. LII / Legal Information Institute

South Carolina confidentiality law also matters

S.C. Code § 19-11-95 protects patient confidences held by the mental health providers it defines, including specified counselors, psychologists, and social workers.

The statute addresses authorized disclosures and circumstances requiring disclosure. Under subsection (D)(1), a court may order disclosure for good cause when the patient’s treatment or mental or emotional condition is reasonably at issue. That subsection also prohibits using the disclosed confidences as evidence of grounds for divorce. scstatehouse.gov

A request arising in a custody case therefore deserves careful legal review. Do not assume that participation in litigation, or the absence of an objection, automatically removes confidentiality protections.

Psychotherapy notes have special protection

HIPAA distinguishes psychotherapy notes from ordinary treatment records. The term generally refers to separately maintained notes documenting or analyzing counseling conversations. Diagnoses, treatment plans, session times, and progress summaries do not become psychotherapy notes simply because they concern therapy. HHS.gov

Psychotherapy notes generally require specific authorization, subject to limited exceptions. Do not assume the ordinary subpoena procedures for medical records automatically authorize their release. Counsel should evaluate whether an authorization or an applicable exception, including disclosure required by law, supports production. LII / Legal Information Institute

Notify the client and review objection deadlines

Contact the client promptly, document the communication, and encourage the client to consult their attorney. Calendar the subpoena’s deadlines and obtain advice about the therapist’s own obligations.

Under South Carolina Rule 45(c)(2)(B), a person directed to produce records may serve a written objection within 14 days after service, or before the compliance time if it comes sooner. A timely objection prevents the requesting party from inspecting or copying the disputed materials without a court order. A separate motion to quash is not always necessary for that records objection to have effect. South Carolina Judicial Branch

A client’s informal request to keep records private does not necessarily satisfy the applicable objection procedure. Conversely, the client’s silence does not eliminate the provider’s confidentiality duties. An objection to document production also does not automatically excuse a separately commanded appearance or testimony. South Carolina Judicial Branch

Who decides whether therapy records are relevant?

The court resolves contested questions of discovery and admissibility. However, therapists still have responsibilities concerning confidentiality, protected material, and the scope of any authorized disclosure.

When a request appears overly broad or seeks protected information, counsel can consider an objection, a motion to quash, or a protective order. Depending on the dispute, counsel may ask the judge to review records privately before deciding what, if anything, should be released. South Carolina Judicial Branch

If disclosure is authorized or ordered, follow its limits. Preserve the original records, document the basis for disclosure, and transmit the permitted information securely. South Carolina law limits disclosures to the information and recipients necessary for the authorized purpose; HIPAA likewise limits disclosures under a court order to the information expressly authorized. scstatehouse.gov

A practical response to a therapy records subpoena

When served with a subpoena:

• Preserve the records and calendar the response date.
• Identify whether the request includes a valid authorization, adequate HIPAA assurances, or a court order.
• Notify the client and obtain legal guidance.
• Raise appropriate objections within the applicable deadline.
• Release only information supported by the governing legal authority.

A subpoena deserves a timely response. The decision to release therapy records requires a separate review of the legal authority, confidentiality protections, and limits on disclosure.

Related Settlyd reading

• Are adoption records discoverable? — A related discussion of confidential records and protective orders under a different statutory framework.
• Can a Family Court Judge order an inpatient mental health evaluation of a juvenile? — Statutory limits on court-ordered mental health evaluations.
• Is your client ready for their domestic relations mediation? — Attending to clients’ emotional needs when preparing for settlement.

This article addresses ordinary civil litigation requests, with an emphasis on South Carolina. Additional rules may apply to particular providers or records.