Responding well to a subpoena as a psychologist (with Dr Carollyne Youssef)

[00:00:00] Bronwyn: Hey, mental workers, you're listening to the Mental Work Podcast, your companion to early career psychology. And as always, I'm your host, Dr Bronwyn Milkins.

[00:00:13] Today, we are talking about a topic that typically comes with a bit of anxiety, and it's about how to manage and handle subpoenas as a psychologist in Australia. This is a really crucial topic because a lot of people do `receive them as psychologists, and it can feel really daunting, especially when you're early in your career.

[00:00:31] In this episode, we're going to break down what you need to know about legal obligations, maintaining client confidentiality, and seeking legal advice. Plus, we'll share some tips and tricks for how to navigate this really complex area confidently. To help us out today is our return guest, Dr. Carollyne Youssef. Hi, Carollyne.

[00:00:50] Carollyne: Hi Bron, thank you for inviting me again.

[00:00:53] Bronwyn: So, Carollyne, could you please tell listeners who you are, and I'd also love to hear what your non psychology passion is.

[00:01:00] Carollyne: Absolutely, so I'm a forensic psychologist, um, I have my own forensic practice, uh, in Sydney, and in terms of my non psychology passion, so I really like baking, all things baking, and I'm currently trying my hand at hyper realistic sketching.

[00:01:16] Bronwyn: Oh, really? Wow, that's so cool. Are you doing that just like through your own individual learning or is that through a course?

[00:01:23] Carollyne: No, no, through my own, um, yeah, individual learning, so trying to master that is actually really, really tricky to do, so...

[00:01:30] Bronwyn: Wow. Yeah, I imagine so. Yeah, like I don't feel like it's a skill that would come easily, but well done you.

[00:01:36] Carollyne: Thank you.

[00:01:38] Bronwyn: So as Carollyne mentioned, she's a forensic psychologist and I, like I've mentioned this on previous episodes with forensic psychologists, but I just don't have a lot of knowledge in forensic psych, so I just think they know everything in the legal area. But maybe I'll ask Carollyne to clarify, how did you become interested in learning about subpoenas and how did you learn about them?

[00:01:58] Carollyne: Okay, so in terms of subpoenas, so look, I mean, part of forensic training you do learn a little bit, but you certainly don't learn everything about the, you know, the justice kind of, um, system. In terms of my learning of subpoenas, I remember it being mentioned in my training very briefly, but I really got to learn about it when I received one. That's when I really actually got to learn about it.

[00:02:20] So, uh, very early on I actually worked in a large organization, like a government department. So, uh, whenever anything like that came through, it actually got fielded through the legal, the legal department. So you didn't ever really have to deal with it, but it wasn't until private practice that you really get to deal with it kind of front on, because when you get it, you get it directly, and then you need to deal with it. So you learn very, very quick, smart, um, how to deal with that.

[00:02:46] Bronwyn: Yeah, and do you remember the feelings that showed up for you when you did receive your first subpoena?

[00:02:51] Carollyne: Oh, look, really, really anxiety provoking. Um, it's so interesting because you always feel like you've done something wrong. It kind of has that feel to it, like, oh, I've done something wrong. Why am I, you know, subpoenaed? But, um, yeah, I remember feeling quite, yeah, it's quite, quite anxiety provoking. Um, particularly depending, I mean, it depends on what they're asking you for, but it can feel very overwhelming if they're asking, for example, for an entire client file and you just think, oh my god, this is huge.

[00:03:19] Bronwyn: And how do you feel if you receive a subpoena now, like if you've received one recently or in the past year, like, is there still that, you know, great sense of panic or are you cool, calm and collected?

[00:03:30] Carollyne: Probably midway. I don't think it's ever cool, calm and collected. There's still that, that kind of anxiety around it. Um, I think with over the years it's gotten a little bit easier because you, you sort of, you know, you understand what a subpoena is and in the grand scheme of things, why it's there, why it's necessary. Um, and I think that's actually helped me over the years, kind of not freak out too much. But yeah, you still have that little bit, you know, of anxiety there, um, always in the background.

[00:03:59] Bronwyn: Yeah. And I mean, that's understandable. It's, I guess it's not something that ever goes away completely, but it sounds like you feel a little bit more confident.

[00:04:08] Carollyne: Yes.

[00:04:10] Bronwyn: No, that's, that's good to hear. I guess it's a bit reassuring. I guess I wouldn't want to go into a full blown panic every time I received one. Um, because even reading about this topic, I noticed as I was reading about it, that I was feeling anxious and I'm like, oh my goodness, you know, it's just, it just brings up a lot.

[00:04:27] Carollyne: Yeah it does. And I think it's because it's also an unknown. You don't know, like, with the subpoena, you don't know what you're going to be asked, if you're asked to kind of go to court. There's so much around it as well that's unknown. Um, and you're handing something over that I think psychologists it's typically, you know, like if they're retaining their notes or their files, it's for them, and then suddenly it's now, for other eyes as well, so I think it's very normal to have that anxiety when you are subpoenaed.

[00:04:54] Bronwyn: Completely agree. Let's start off with, I guess, an overview of what a subpoena is and why psychologists might receive one.

[00:05:02] Carollyne: So, a subpoena, I guess very formally, is essentially a legal document that's issued by the court, um, or a legal authority that's asking you to produce documentation, um, or to appear to give evidence, um, in, in particular proceedings. That's essentially what it is.

[00:05:22] There are many reasons why psychologists might receive a subpoena. It's actually quite you know, vast. It could be around your treatment of someone, if you're treating someone. It could be a psychological evaluation. So there's a range of reasons why you could be subpoenaed. I think what might be helpful is give an idea of where a subpoena sits in the grand scheme of things?

[00:05:47] Bronwyn: That would be helpful.

[00:05:48] Carollyne: Okay. So, in terms of, um, where we're subpoenas lie, we've got many different types of courts and typically it is for courts. Um, I think a lot of people when they hear court, they assume criminal, criminal matters only, but there are many other types. So, you've got your criminal ones, but you've got your civil, such as, you know, employment, injury, estates, um, you might have family matters, you, you've got a... got, you know, child care protection matters, victim support. So there's a range of different types of situations where you might be subpoenaed to either produce documents or give evidence.

[00:06:25] And so essentially when we're, I guess, looking at a court matter or a situation, we've got a decision maker. And, so if we to you use something like a criminal court, that's usually kind of the judge or a magistrate. Um, but then you've got the parties to the proceedings. Uh, and so if we use a criminal matter, um, as an example, you've got perhaps, you know, the defence and the prosecution. And each of those parties are required to produce evidence before the court in order for a decision to be made. So each party is responsible to produce, I guess, as much evidence and support for their position as possible.

[00:07:03] And so part of what that, I guess, that evidence is could be things like, I don't know, CCTV footage, it could be DNA, it could be witness statements, it could be expert reports, psychological assessment reports, but it's also third party information. And it's that third party information where a lot of those subpoenas, typically for psychologists, sit within that, um, and that is where they might deem that your, your information, um, or evidence that you could provide is somehow important for their, for their case, um, in the court and putting forward their argument. And so that's actually where the subpoena kind of comes in.

[00:07:47] Bronwyn: That's really helpful to understand because what I'm taking away from that is that, okay, the, the lawyers, uh, whoever's representing the client is thinking that what they have discussed or disclosed in sessions might be helpful for their case. Like, I guess where I'm coming from is like, they're not trying to judge you necessarily as the psychologist, uh, like your professionalism or their work, or your work, they're just trying to help the client. Like, would that be an accurate assessment? Or maybe there are some subpoenas which are like, we want to judge your work.

[00:08:24] Carollyne: Look, I mean, I think in the grand scheme of things, they've deemed that you've got information that is somehow helpful, yeah, to the proceedings. Um, and that the judge, the magistrate or the tribunal member or whoever is making that decision, um, would benefit from hearing what you've got to say or reading, um, some of the material that you've been asked to produce.

[00:08:46] So absolutely, um, with that said, there are situations I suppose in cross examination, for example, where you might be questioned about certain things and asked to, defend that, I suppose, in court. But again, the purpose of that ultimately is to assist the decision maker. Um, or the court. And I think it's always really helpful to put it in that perspective. So you're not the one, I guess, that's on trial, so to speak. Even though it can feel like it, you're actually assisting the court. That's really what that would be about. Your, your presence there or your documents are actually intended to assist the process.

[00:09:25] Bronwyn: Yeah, and I think that is a helpful way of thinking about it, because as you said before, it's like, some of our first thoughts can be, what have I done wrong? Um, so reframing it as, okay, they think that I can be of assistance is... is a more helpful way.

[00:09:41] Carollyne: Yes.

[00:09:42] Bronwyn: Yeah. What I've heard is that it's really important to understand your legal obligations when responding to a subpoena. Um, could you just elaborate on what these obligations are for Australian psychologists?

[00:09:53] Carollyne: I suppose in terms of your legal obligations, so I don't think I mentioned the, the sorts of things that you could be subpoenaed on could be, you could be subpoenaed for your notes or your file. Um, you could be subpoenaed or summoned to give evidence in court or both those things. So they're the kind of the three, generally the three categories that it falls into.

[00:10:14] Um, there are certainly some obligations for Australian psychologists when responding to a subpoena. The first one is timeliness. So being mindful that you do need to respond, and you do need to respond, please not ignore a subpoena. Um, so when you do receive one, um, it's usually time limited and the time frames are not usually that overly generous, so you do need to act reasonably swiftly and respond, um, to the subpoena. So that would be the first thing that I'd, I'd mention.

[00:10:46] The other one is around just the accuracy of the information that you're, you're providing. So it's really important to provide accurate information as requested, um, and have some integrity in, in doing, in doing that. The one that comes up a lot as well is confidentiality. Um, obviously when you're subpoenaed, whether your notes are or you are, um, the issue of client confidentiality always comes up. Um, so what you want to do is you do want to protect client confidentiality as much as is possible within that scope, and I'm sure we'll talk about it a little bit later around the ways to do that, but um, you do need to be mindful of still preserving as much of that as is possible.

[00:11:30] Bronwyn: And like, we're talking about legal obligations here, so you have to respond to the subpoena. And, I guess like what I'm hearing, we'll get to more about client confidentiality later, but it's like if you're being asked to produce documents, unless you have a reason or an objection to doing so, you need to produce those documents within the given time frame.

[00:11:51] Carollyne: Yes, that is correct. It's definitely something that needs to be responded to when you do receive one.

[00:11:57] Bronwyn: Yeah. What are some of the common mistakes that you've seen, or maybe, maybe you've even come by yourself, um, that psychologists make when responding to subpoenas, and I guess how can they avoid these common mistakes?

[00:12:12] Carollyne: So I'd say that the first one, the main one, is ignoring it, um, and this is a really interesting one. So ignoring it, some people perhaps don't recognise the significance of a subpoena or the obligations of receiving a subpoena and the ramifications of ignoring that. Some people actually get it confused with legal letters. So this is something where we often see, particularly in private practice, letters from solicitors that request file information. They might attach an EOI and you don't, I mean, that's not a subpoena, and a lot of psychologists may choose not to necessarily respond to that, and may actually confuse a subpoena, um, for that.

[00:12:55] Uh, but just generally, yeah, ignoring a subpoena is, is, is definitely a mistake, um, to do that, and, and not, not at all recommended. So, whenever you receive a subpoena, it will be very clear, that it is a subpoena. It will say it at the top, um, and some things to look out for, for example, it being stamped and dated by the court, um, and reading it you will, you will definitely know it's very different to receiving just a legal letter from a solicitor that might be requesting, you know, a client's file, you know, as part of their matter. So they're quite different, so you should be able to identify that the document you've received is indeed a subpoena.

[00:13:33] The other, I guess, mistake is not seeking legal advice where you might need to. So perhaps you've identified that the request is very broad. And you think, oh, like, maybe this is too broad. Um, I don't know what I should do. Or maybe you kind of don't entirely comply with the subpoena when it may have been advisable, for example, to seek legal advice to actually clarify that.

[00:13:59] Um, so that's another one. So if you're ever unsure, um, or it just seems very broad or very ambiguous, definitely seek legal advice, um, first and foremost, because we're not lawyers, so this is not really our... it's not our domain to identify that, it would be the law, a lawyer's domain to tell you yes, actually that's reasonable or no, perhaps we can, we can address it this way with the courts.

[00:14:23] The other one is failing to redact sensitive information. Uh, so even though it's a subpoena and we recognise that we need to comply with it and it will mean that there'll be an aspect of obviously our client's confidentiality being breached, there is still an obligation to redact sensitive information, so this could be third party identifying information or information for contact details, for other people that's not actually necessary for the subpoena, or regarding your client specifically. So there is an obligation there to go through that and redact that kind of extra sensitive information.

[00:15:01] Um, the other one is incomplete responding. Um, when you say incomplete responses, so providing only partial documents or not fully complying with the requested documentation. So you want to read the subpoena really, really carefully. When you do receive a subpoena, it will very clearly, hopefully, outline what is, what they're asking for. So, for example, it might be asking you for your file records from a particular date range. So, it might be, you know, between 2020 to 2021. And then you've got some psychs that freak out and go, oh god, I'm giving everything. And so you give everything, but they've actually just asked for a specific date range, or perhaps they've asked you for test results or school records for a client. And so you really want to read that carefully. And again, that will be listed in the subpoena. And if it's not clear, again, seek clarification, rather than just complying with what you think they want.

[00:15:59] And the last one would be poor record keeping as well, um, has come up for people, so if you're not keeping, um, comprehensive records or your notes are not up to date, you can run into a lot of, um, difficulty when you do get a subpoena, particularly because they're time limited, and if you've fallen behind, you may find that you're struggling, um, or you've actually, you know, some people have not documented certain things. So I have seen subpoenas where they've requested your file notes, but they've also requested administration notes. So any phone calls that you've had, any kind of email correspondence. And so if you've not been keeping that kind of up to date in your record, you're going to end up kind of panicking when that subpoena comes through. So again, it's about keeping those really comprehensive notes.

[00:16:50] Bronwyn: Yeah, so there was a few things that came up there for me. The first thing was when you were talking about the differences between a letter and a subpoena, um, I've received plenty of Both. And yeah, for me, the subpoena that I received was in the mail, it was very official, like I think it had a stamp from the court. It also had some information about the subpoena itself, like the process and who to contact if I needed further information. So it was actually quite thorough. Um, and the help was, was good. Like it gave the numbers for who to call if I was unsure about anything, which I found was helpful. It was very specific.

[00:17:28] As compared to the letter from a lawyer, it was an email, um, didn't have any mention of subpoena, was requesting a report, um, so it was different. So to me the differences were quite obvious. So I just thought like, you know, is that a common difference that you might see?

[00:17:47] Carollyne: No, so, look, I've, I've, we've received subpoenas via email.

[00:17:51] Bronwyn: Oh really?

[00:17:52] Carollyne: Yes, yes, so you can, you can, I mean, you will also get letters, but um, you do receive it via email. But I suppose if you're not, well, for some, I mean, to me, the difference is, yeah, as you said, quite clear. It's a lot more official, it's a lot more formal. Um, it's, you don't really get a letter along with it, it's just the document from court, um, and it might have some of those instructions attached to it, whereas, yeah, the one from a solicitor, it's, it's very different. You've got that letter, you've got a, you know, a request there, um, it's not stamped by any court or anything like that.

[00:18:26] Even though a solicitor's letter might cite legislation and obligations, so it might feel official, um, and I can see how people who are not, um, who might be new to the, to the field might really kind of be concerned and anxious by that, it's certainly not a subpoena. A subpoena is usually very clearly marked as such, um, until the moment you say that word subpoena, that you, yeah, you kind of, you know. You take that quite seriously. Not that you don't take a lawyer's letter seriously.

[00:18:54] Bronwyn: Yeah, no.

[00:18:54] Carollyne: A subpoena carries with it a lot more weight. Yeah.

[00:18:58] Bronwyn: Yeah, no, totally. And then the other thing that stood out for me was redacting the information of third parties. I was just wondering like, is that, is that considered tampering with the data? Like, or would you need to add a letter being like, I've redacted this third party information?

[00:19:17] Carollyne: Yeah. Look, I would definitely add a letter, and I generally add, I would recommend adding a letter to the judge in any case. So, um, I mean, particularly if you're a treating psychologist and you're concerned about what this material might do, potentially, it might impact on therapeutic relationship, certainly you can address things to the judge, but you can, you can say that. It leaves the court open to then say, no, please send through, you know, the, the information or the file .

[00:19:45] But usually when you're redacting, it very much is like a name, or an address of someone, or a number. You know, those sorts of things. Um, that's really what it is. Rather than like chunks and chunks of your, of your file notes, which I think would be considered to be tampering with that.

[00:20:04] Bronwyn: Yeah. And, you know, I'm just looking at this document that I have open about subpoenas as well. And I just, my eyes just, uh, laid on this line, which might be relevant to now, which says, you are protected by the relevant law from prosecution by the client or disciplinary body, if you are subpoenaed to produce documents or information. Um, and I think that's relevant because it's like, I think psychologists might be like, oh, but I need to protect confidentiality, but it's, any request for, um, a subpoena, you are legally compelled to produce those documents so your client's wishes or confidentiality cannot override your legal obligations. Um, I just thought that might be reassuring.

[00:20:47] Carollyne: Yes, no, absolutely. And look, I think on that note of redactions, anytime you are going to do something like that where you think, perhaps, this is not relevant, I would, be seeking legal advice on that just to make sure and you make sure that that's very well documented. So anything that requires that, um, where you're potentially leaving things out, I think to just be safe, it's always recommended that you are seeking legal advice regarding that.

[00:21:16] Bronwyn: Totally. And yeah, like you say, we're not lawyers, and yeah, just having interacted with lawyers, it's like, it really highlights to me how little I know, um, and how much specific terms I guess carry weight in legal circles and how something that I might be concerned about, the lawyers are like, look, that's not a concern that the court would share sort of thing. Or like that is a concern, you know, it's just, um, it's been really interesting.

[00:21:41] Carollyne: That is very, very true. Very true. And I think that's the humbling process of going, I'm going to do my part as a psychologist. I'm going to abide by my ethical guidelines, but where I'm in doubt, I'm going to go to a professional.

[00:21:54] Bronwyn: Um, and then the last thing I wanted to to, um, point out was, yeah, just keeping records because when you mentioned like the emails as well, I was like, oh, crap. And like, you know, that's something that I've had to make sure that I have a process for in private practice in saving that through the client's files, um, because it's not automatic, you need to save things. Um, so yeah, I think I just wanted to point it out because it is important to have a process for saving all of that information.

[00:22:21] Carollyne: Absolutely, but even phone calls for appointments, I mean... but sometimes you might be questioned on someone's engagement in therapy, maybe that's relevant. And if you've got someone who's rescheduling a lot and, and those sorts of things, that becomes actually relevant to see why, you know, why have you only had X many sessions with them or what's their engagement been like? So, yeah, things that you might think are perhaps not that relevant can actually become really, really relevant in another context.

[00:22:48] Bronwyn: No, yeah. It really highlights the importance of thorough, um, and I guess up to date record keeping, like you said as well, like the timeframe might be short. And so you need to make sure that your records are up to date.

[00:22:59] Carollyne: Yes.

[00:22:59] Bronwyn: Okay. I think that brings us to the next question, which we've kind of addressed, which is like, you know, it, it seems important to seek legal advice when faced with a subpoena. Would you always suggest doing this? I mean, from what we've talked about so far, it seems like, yeah, it's probably a good idea. Like, what do you think?

[00:23:18] Carollyne: Look, I think it can't hurt to always do this. I mean, most people, I think, are not getting subpoenas, you know, weekly or monthly, even if they're working in kind of that, you know, justice involved space. I think it's always safe to do that, um, to, to seek that legal advice. But I think it's very, very important when things are, yeah, ambiguous, and sometimes you may very well get a subpoena that seems ambiguous. And what I mean by ambiguous is, you know, just very broad. Um, and maybe you, you become aware of what the context is and you just think, wow, that's really, really broad. Um, it just seems like that's too much. And so, yeah, in those situations, and I've seen those situations come up a fair bit, um, or even situations where somebody, you're seeing somebody for a particular situation, a particular kind of clinical presentation, maybe it's depression and anxiety, maybe it's relationship issues, and then you get subpoenaed for, say, um, I don't know, you know, a criminal matter, for example. And you just think, oh god, like, I'm not sure whether that's, that's all connected. And so again, you'd seek legal advice around that.

[00:24:30] Bronwyn: Yeah. Do you reckon there's some situations where it's particularly crucial, like in these kind of maybe ambiguous situations or maybe when there's like family court or any other situations that you think might be particularly crucial?

[00:24:46] Carollyne: Yeah, so family court is a, is a really common one, I think, where that comes up. Um, where you're seeing maybe more than one family member, um, or you're saying, say, a child, um, and then you've got, you know, kind of involvement with the parent, which again is that family situation... so they're the ones where I think, yeah, you really want to seek some legal advice.

[00:25:07] Or ones where there's like inter jurisdictional sort of crossover there. So maybe even another state, there's something going on in another state and you're not familiar with that. You might want to seek some legal advice because from state to state things are slightly... there's some slight variations there, um, or where there's multiple things occurring. So maybe there's a family court issue but then one of the parents also has a criminal matter going on and then there's like crossover there and there's just lots of lots of different things going on, they might be situations where you you certainly want to ensure that your... you're seeking legal advice, um, or anything where you might want to challenge the subpoena, um, is also where you need a lawyer for that. I would not be challenging something without seeking I suppose that legal advice just to be sure that you're not either overstepping the mark or you're misunderstanding something or you're, yeah, you're acting outside of your knowledge base.

[00:26:05] Bronwyn: Yeah, that seems important because I can imagine that they might come back and be like, you're just obstructing the court process. Yeah.

[00:26:15] On to client confidentiality. So, psychologists, like, client confidentiality is like the mainstay of psychological practice. We're pretty much taught to guard client files and information with our lives. How can we do this, or can we, like, are we able to maintain confidentiality while still complying with a subpoena?

[00:26:36] Carollyne: Look, I think as much as we can, there's going to be obviously limits to that. So if it's a really broad subpoena and kind of your entire file is subpoenaed and you're also subpoenaed to give evidence, you know, that might be a little tricky.

[00:26:53] But even within that, I think, again, it goes back to reading the subpoena. Reading what it is that is being requested and not just providing everything. If you're not being asked for the file in its entirety and you're being asked for specific information, that's the specific information that you provide. Um, similar I guess if you're giving evidence you answer the questions that you're being asked rather than just kind of, you know, providing really verbose responses where you might inadvertently say other things that you haven't necessarily been asked... asked about.

[00:27:25] I suppose in terms of, yeah, that redacting that information, so being mindful that there might be references to third parties and after seeking legal advice, if the advice is, you know, to redact that information, certainly that's another, um, layer of preserving some of that, that client confidentiality.

[00:27:42] Um, negotiating the scope, if there is opportunity to do that, if you feel that the subpoena's reach is... seems it's a wide net. Um, again, after kind of seeking some advice, that's another way to limit it. Um, it could be that you decide to speak with the party that might be requesting this information and through that you, whether you might be able to negotiate that scope a little bit more.

[00:28:10] Uh, so there certainly are those, you know, there's things that you can do to limit how much of that confidentiality is breached. But I think it's really important to speak with your client as well. So, while, you know, you definitely want to let your client know you've received a subpoena, we don't necessarily, I mean it's, you know, if your client doesn't want you to submit that file, unfortunately we're not in a position to say no, okay, we won't, we won't submit it, but you can certainly talk through with your client about that, have a chat with them, you know, around what to potentially expect. If you've been called to give evidence as well and they're going to be present to hear that, having a chat with them around what, what to expect and then I guess... Yeah, working with them after the fact as well to kind of work through what that process was like and whether there are any therapeutic ruptures, because there may be, depending on what you're asked or depending on what comes out and client hearing that. So working with your client around that is really important.

[00:29:11] Bronwyn: Yeah, it sounds like getting supervision if those ruptures could be something that might happen would be valuable.

[00:29:19] Carollyne: Peer consultation and supervision I think is absolutely essential. And also so that you're not feeling really lonely. Because I think it can be one of those isolating feelings again, like, oh god, I've just been subpoenaed, I'm really stressed, I've only got five days to do this, I've got all my other work, and now I need to comply with this, and I've, you know, maybe you've been subpoenaed to give evidence as well. All those things are quite anxiety provoking, which is very normal.

[00:29:45] Bronwyn: Totally. Yeah. And I mean, supervision, it's like, like we just said, it's very anxiety provoking. And sometimes with anxiety, we can, I know, you just, kind of feel overwhelmed and like you don't know where to start at times. So having a peer or a supervisor, they're like, look, here's the process. You need to start here, think about this, do this, do this, and just remind you or help you, um, can be really valuable when we're feeling really stressed and anxious.

[00:30:10] Carollyne: Absolutely, absolutely. And it would be great if people can also share what they've been through because you, you probably know someone who's also been subpoenaed. It's actually more common than people realize, um, for psychologists. So even talking through about those experiences and sharing with, with a, with a peer is really helpful.

[00:30:28] Bronwyn: Yeah, and I mean, maybe it's a good time- I've been subpoenaed. Um, it was a very simple subpoena though. Um, so, um, it was literally, like, limited to session notes from one session for a client who I had seen, like, six months prior, um, had discharged, so there was none of that, um, potential ruptures, the case was already closed, and it was just notes from, um, one session, um, it was fairly easy to comply with. There was no sensitive third party information. There was none of these kind of other like ethical dilemmas. and so it was, it was fairly simple to comply with. Um, but I still did get peer support around what to do, cause it was quite anxiety provoking.

[00:31:09] Carollyne: Yeah.

[00:31:09] Bronwyn: Yeah. So like what we're emphasizing is you're probably not alone, like, many psychologists receive subpoenaed and it's not a reflection on the quality of their work, it's just the court processes.

[00:31:20] Carollyne: Absolutely. Yeah, and I think that is a really key, um, point is that it's not, yeah, it's not, it's, I think it's helpful to say it's not about you.

[00:31:28] Bronwyn: Yeah.

[00:31:29] Carollyne: You've been identified as potentially instrumental in assisting the court. And I found that when I, when I kind of helped conceptualise it that way for myself, it just, it took the edge off a little bit, you know, like, okay, that's what it is, it's part of a, of a bigger, broader process.

[00:31:47] Bronwyn: Yeah, and just talking about objections, whether it's possible to negotiate the terms of a subpoena, the fact sheet that I have says that each court has slightly different requirements for making an objection and the necessary information should be in a notice attached to a subpoena or available through the court website. So I guess like, a takeaway from that is that it's intricate, it's different for each court, we need to find out info.

[00:32:10] Carollyne: Absolutely, yeah. And don't, don't make assumptions, is the other thing, which I actually think good thing, right? So don't think, oh God, I'm not going to be able to do anything. I think definitely, if something's niggling at you, if something is, just is not sitting right, seek advice, and then ask the courts. That's the, that's the best thing to do. You can always ask, and the worst case is they just say no, you need to comply. Best case is that they actually, it does result, it kind of, you're able to work something out that limits the scope or clarifies something. So I think that's definitely something to take away is that it's, it's worth asking would be my, my kind of, my point there.

[00:32:49] Bronwyn: Yeah, I guess I'm just trying to think of a hypothetical example where we might want to negotiate the terms of a subpoena because we think like it's either irrelevant or our client might be at a disadvantage and I'm just thinking off the top of my head, like, let's say that, um, mm hmm, our client is a mother.

[00:33:06] You've been subpoenaed by the family court. In one situation, in, in one session, she disclosed to you that she was, uh, feeling particularly dysregulated, completely out of character, and yelled at her child, and the child looks scared and frightened, and like the court case concerns her parenting capacity or something.

[00:33:26] And you, as a psychologist, you're like, Look, this was completely out of character. It's not a reflection of who she is as a parent. Would that be something that you might want to negotiate or like, is that not? Or is that something that legal advice?

[00:33:38] Carollyne: Yeah, no, so definitely, I mean, definitely legal advice, but I think that might be something that comes under it. Um, another, another one that I, I'm kind of aware of and can think of is where you're seeing somebody, um, perhaps for, for, you know, a mood disorder, for example, but other, other things have come up that might be regarding their personal relationship or their intimate relationship. And, um, you've kind of, you know, spoken about that in detail and that's in their notes and some, you know, concern around the sensitivities around that and whether that might be relevant to say a work... like a work related matter or discrimination related matter, for example.

[00:34:17] So again, it's about just making the court aware that there might be some sensitive information that doesn't actually seem to be related, but that might now come out. Um, and there's similar situations that I'm aware of in a parenting situation as well where, you know, similar, very sensitive information has come out about the parent's private life, and so there's been anxieties expressed around how that might be interpreted in court. And again, seeking legal advice and what it, kind of, I'm aware that people have written letters to the judge, for example, to the court, just flagging this and saying there's some sensitive information, you can refer to this statement, this date, to this date in the notes, and we just ask respectfully that this, you know, that the court be mindful of this.

[00:35:05] So there are ways and if, if the, you know, the outcome is no, it can't be negotiated, you can always write a letter to the judge. And I do actually advise this to kind of write that letter to the judge to alert the judge as to what some of your concerns might be or some of the sensitivities contained in that file information for the judge to make that decision.

[00:35:28] Bronwyn: Hmm, no, makes a lot of sense. Um, yeah, with the... it's a work matter and let's say they've got some sensitive data. Like I'm thinking even, let's say the, that your client is of a diverse sexuality or gender, and the subpoena is about a work matter. And you're like, look, the client, um, has not, uh, disclosed like the nature of their diverse gender or sexuality to other people. Um, this matter like might affect the client. It's, it's not in their best interest, that kind of stuff.

[00:36:01] Carollyne: Absolutely. And another one that I am also aware of is, again, workplace issues, but the client's been talking about potentially, you know, marital problems, extramarital affairs , so very sensitive information. Again, may not be relevant to the work related issue. Um, and so again, I guess you get to appreciate as psychologists, our clients talk to us about all sorts of things, and while they may be about one issue, it's not unusual for other issues to get discussed and come up and when we're looking at subpoenas, if it is quite specific, but there's like a wide net, it then captures a lot of that other information, um, of may not be relevant to the current proceedings.

[00:36:46] Bronwyn: And are there any other ethical issues aside from confidentiality that psychologists should keep in mind when responding to subpoenas? And I want to get in with, like, my own one before, before you answer, actually, because I'm just thinking, like, could a ethical consideration be a risk of psychologists, uh, going into a dual role of being the therapist psychologist, but then turning into like an advocate or like, does that make sense?

[00:37:15] Carollyne: Yeah, yeah, no, it does. And there is, I think there is that risk there of doing that, and I think being very careful, um, not to do that. And again, this is why it's really helpful to A, get supervision, and peer consultation, but to get legal advice from somebody who's a bit more objective and not kind of caught in that... yeah, possible counter, you know, counter transference stuff going on or just other forms of identification with your client.

[00:37:41] So yeah, it is about being very mindful of that and not potentially risking being seen as being obstructive in the proceedings, which is a risk if that is happening, that it can appear and may actually very well end up being obstructive. Like, I'm, well, I don't think that this should go and I don't think it's in their best interest and, and kind of advocating and then losing sight of the subpoena.

[00:38:04] Bronwyn: Yeah. I, yeah, that sounds really important because I think like, I think that psychologists could get into, which I think we're all potentially prone to is kind of, I call it rescuer mode, I guess. Um, but you know, we say something in our eyes unfairly happening to our clients and um, we want to be able to advocate for them, but we need to be careful to stay within the bounds of our professional scope. Um, and yeah, having that objective person to be like, look, you're going a little bit over the line or you're at risk of going over the line here, um, sounds really essential.

[00:38:39] Carollyne: Absolutely. And think that's why it's about reminding yourself that I, yeah, I'm not a lawyer and I'm not, I'm a psychologist and that's why if you're ever in doubt, or actually if you are, I mean one internal cue that's really useful if you're having a really, really strong emotional reaction and you're ruminating about it , that's probably a cue to seek some legal advice. And just not out of your vision, because we are human, and that can happen. Um, and I'm talking about more than just your standard anxiety around getting a subpoena. If you feel that it's, yeah, you're really ruminating about this, I would recommend getting some legal advice.

[00:39:16] Bronwyn: Totally. I keep on thinking every time we say legal advice, but I wanted to mention that through most people's insurers, at least through my insurer, I'm not sure, maybe I'm just speaking to myself, but I know most people have my insurer. Um, but I get two hours of free legal advice every year through my insurer. Um, so that's what I would be doing. I'd be contacting my insurer, seeing which lawyers are like contracted to them to provide that free legal advice, and I'd be doing that. Do you have any. Other recommendations for how you seek that legal advice?

[00:39:44] Carollyne: Yeah, no, that, that was it. Sorry, I probably should have, um, said!

[00:39:47] Bronwyn: No, all right. Yeah, yeah, that's cool.

[00:39:49] Carollyne: -that, absolutely. So yeah, that's what you would use that and, and like I said, I mean, yeah, I think the two hours a year is usually, um, yeah, enough to kind of cover all these sorts of concerns that come up.

[00:40:02] Bronwyn: Totally. And are there any other ethical considerations that psychs could keep, should keep in mind when responding to subpoenas?

[00:40:09] Carollyne: So I think, I mean, we've covered a lot. So if we think about, I suppose, confidentiality, um, you know, obviously trying to preserve as much as is possible within that space. Professional integrity, um, ensuring that you're remaining kind of, yeah, you're, you're, you're acting with integrity, you're being honest and as accurate as possible. Um, trying not to cause, obviously, any harm through that disclosure process.

[00:40:32] Um, so a lot of that is stuff that we've, we, I suppose, we've covered. Um, only providing information that's within your area of competence. That's probably more of an overarching thing that will probably come to, towards the end around that, um, and I'll, I'll kind of, yeah, have a chat about just some things that I've observed over the years, um, for psychologists to just be mindful of.

[00:40:53] But yeah, I, I think the only thing that comes up for me is just making sure that we're, we're very clear with our clients from the outset about the possibility of a subpoena. Um, and while you don't have to tell them, obviously, every session, I think in that very early stage, um, that, you know, when you're going through your consent form, making that really, really clear that there is, there is that possibility. We don't know if that will happen. Um, in some areas, of course, you're more likely to get subpoenaed than others. But I actually think in, in non forensic settings, people probably don't think about that as much because they just maybe assume that that might, might not happen, when in fact that it can happen.

[00:41:33] Bronwyn: Yeah, I, I don't know why I, I consider it in private practice, but I do. It's in my, um, actual, like, kind of pre client questionnaire. I'm like, are you currently involved, or, anticipate being involved in any court matters. So I ask clients that, um, I guess as a kind of screening. Um, but as well, if I get any whiff of anything in sessions, then I immediately go into my spiel about like, okay, this might mean for, um, our notes or any documentation in here that they might be subpoenaed. Um, so yeah, I kind of do that.

[00:42:05] Carollyne: Yeah, I think it's great to script for that though early on. That's really, I don't know that most people do that routinely. I think that's a great tip around that.

[00:42:13] Bronwyn: Yeah, I must have seen it somewhere because it's not my original genius idea. Like, um, so I think I must have seen it like on a Facebook group. Um, and I was like, Oh, okay. I'm gonna do that.

[00:42:24] Carollyne: Yeah.

[00:42:25] Bronwyn: Yeah. Um, so are you aware of any support or resources that are available to psychs who find themselves facing a subpoena?

[00:42:32] Carollyne: Yeah, look, I think your professional associations, so AAPI, APS, you know, they usually, um, have a line that you can call, um, or have resources online available. Again, the professional indemnity, seeking, um, any legal advice if you need to. Peer consultation is always great, um, to do that, uh, and through supervision as well,

[00:42:56] And also continuing education. So I guess CPD, um, just keeping an eye out and ear out for any seminars that might be, um, being offered around this or any professional development, and doing your own reading. I, I, I do often say that I think we're, when you can understand what a subpoena is and understand that broader context and what the process is, I just feel like it takes, it's one less anxiety there. So if you do receive a subpoena, you kind of already know, um, versus having no idea how to navigate the subpoena when it does come through.

[00:43:29] Bronwyn: So true. So, um, just to reinforce that, I've got the AAPI fact sheet on subpoenas, and it's got lots of links to Family Court, Victim and Witnesses, Federal Circuit Court. So I've got lots of information there and I've also got in front of me an APS guide on managing legal requests for client files. It's a 20 page document, very thorough. You know, has a draft letter of responding to a subpoena. So yeah, there are very thorough resources from professional bodies, and I would totally recommend using them. And yeah, I like the idea of professional development as well. I'm aware that there are trainers who offer like two day workshops on responding to subpoenas.

[00:44:09] Um, so it is an area that is, I guess, definitely beyond the, it goes beyond the scope of this podcast as well, but we're just giving you an intro, but there is many, much more, I guess, information that you could know.

[00:44:23] Um, finally, like, are there any, um, anecdotes or personal experiences related to managing subpoenas in your practice that maybe listeners could take a few points away from?

[00:44:34] Carollyne: Yeah, so look, I mean, I think having a policy in place is really useful. So particularly in private practice, just having an idea of what is the process when the subpoena comes through. Is there somebody that you're going to assign that responsibility to? Is it the practice manager? Is it the principal psychologist? What is that process of gathering that information when that does come through, um, and knowing how to handle it. So having read that information and knowing that already. So when it does come through, again, because sometimes the time frames are quite tight, that you already have, um, that, I guess, in the background.

[00:45:10] Uh, another one would be, I guess, noting in client files if there is particularly sensitive information. Um, maybe you're dealing with a victim of sexual assault, for example, where there are some, kind of, I guess, privileged information, kind of, guidelines around that, that that's somehow flagged. Um, if you are speaking to other parties, um, other than just your client, somehow noting that or having it in your, in the file so that it's clear to, you know, clear to identify if you are subpoenaed and you're going through that process you can, you can flag those notes from say your client's notes.

[00:45:47] The other thing is just around your note taking. I cannot express enough how important note taking is, um, and just getting into the practice and the habit of, um, writing your notes right away, um, as soon as you can, uh, being really specific in your notes and factual, even things like how you're describing your client, you know, actually behaviourally describing what you're seeing. So saying, you know, he appeared to be intoxicated and was swaying versus he was drunk, you know, so little things like that, um, I guess if your notes are subpoenaed, um, some of that becomes quite relevant, um, if you are questioned about, you know, some of the contents of that. So, um, they're just little things that you can do, uh, I suppose, yeah, day to day, so that if you are subpoenaed, you've already got that, that groundwork.

[00:46:36] Uh, and as we discussed as well, just being very clear with clients, um, around, you know, under what circumstances, um, can confidentiality be breached? Uh, so I think especially if you're not working in the justice setting where that might not be necessary at the forefront, just making sure that clients are aware of this.

[00:46:55] And like you said, Bron, when you become aware in particular that there are proceedings, reiterating that as a reminder that yes, you know, in the event that I am subpoenaed, just so you're aware, this is, all this information can, can be subpoenaed.

[00:47:10] Bronwyn: Yeah. Um, just on the notes, like just because, um, a lot of early career psychs listening, so I'm doing like a bridging program in clinical psych right now. And as part of the program, um, we needed to show our supervisors some, uh, like, redacted client notes, like redacted for name and sensitive information, just so they could give us some feedback on our notes. And I actually found that really helpful. Like, it's not, like my notes were inadequate, but there were a few pointers on how I could improve the clinical language in my notes, which I really appreciated. So listeners, if you're unsure about your notes, or you just want a second opinion, like I would suggest, um, yeah, doing that, like sending kind of a redacted version, you can open it up in a PDF and then redact words using like Adobe and I found that really helpful.

[00:47:58] Carollyne: And look, that's actually a really good exercise to do in supervision generally. I know that in supervision, that's certainly come up, um, in kind of the supervision sessions that I've had where it's just good to get that feedback. But yeah, when we're looking subpoenas and the fact that files get subpoenaed, your notes form the bulk of that usually. And so it's really helpful to just get into that habit of, yeah, how you write your notes.

[00:48:21] The only other thing that I guess has, as that comes up, um, that I've seen as well is just in terms of psychologists, I suppose, just acting in, within the area of their competence, um, particularly when it comes to these sorts of things. So I have seen sometimes that, um, you know, where notes have been subpoenaed or, you know, I guess psychologists need to give evidence that sometimes if you have perhaps provided an opinion on someone's risk that you're treating, the risk that they might, you know, um, engage in IPV, so interpersonal violence, towards their partner, but you've not conducted a formal risk assessment or you're not necessarily trained in that, that that, you can, you can be, uh, examined over that, um, and having to, I suppose, justify where that opinion has come from.

[00:49:07] So that's more just of a side note around psychologists just being mindful that, yeah, when you are providing an opinion or something in writing, um, just being mindful of acting within your area, I guess, of, of competence and being careful of dual roles as well. So that is something I have seen where, you know, someone is treating someone and then provides an opinion um, about like, yeah, like a risk assessment where again it's that dual role.

[00:49:32] Bronwyn: Thank you for that. We really appreciate your insights. And what's the main thing that you hope listeners will take away from our conversation today?

[00:49:40] Carollyne: The main thing I hope listeners take away from this conversation is that I guess in terms of subpoenas we're part of, you know, a small part of a much bigger picture and I think to look at this as us hopefully assisting and facilitating that decision making process that's made by say, you know, the court or tribunal or whatever it might be that we're kind of, yeah, hoping, yeah, assisting and facilitating that rather than looking at this as some adversarial thing against you as a psychologist or a practitioner.

[00:50:09] Bronwyn: So important. And yeah, I just wanted to say, Carol, thank so much for coming on the podcast. I think you've done an exceptionally great job of taking us through this, uh, quite complex topic. Like in terms of the topics that we talk about on the podcast, this is like a top three, like information heavy, podcasts that like we've needed to be very specific with. So, so true, truly. Thank you.

[00:50:34] Carollyne: No, thank you. Sorry, if like, if it was like really kind of dense, it probably is a bit -

[00:50:40] Bronwyn: But like, it needs to be as well, because you know, it's such a, uh, like a specific process. Um, so no, yeah, I think it's great.

[00:50:48] Carollyne: Thank you.

[00:50:49] Bronwyn: And Carol if listeners want to learn more about you or get in touch, where can they find you?

[00:50:54] Carollyne: Yeah, the best, the best place would probably be the website, so that's just um, psychorium.com. Um, and if, yeah, if people have any, any additional questions they're very welcome to email me as well and I'm happy to assist where I can.

[00:51:06] Bronwyn: I'll make sure to pop your website in the show notes. And listeners, yeah, do feel free to reach out to Carol. I also understand, Carollyne, and you do supervision.

[00:51:15] Carollyne: Yes.

[00:51:16] Bronwyn: So yeah, feel free to reach out to Carollyne and I'm sure she'd be really pleased to hear from you. Um, and Carol, thanks again for coming on. It's been a real pleasure to talk with you about this.

[00:51:27] Carollyne: Thank you very much for inviting me again, Bronwyn. This has been great.

[00:51:31] Bronwyn: And listeners, thank you so much for listening. I hope you got a lot out of today. I'll make sure that I put those resources in the show notes. Don't leave this episode being like, oh, I'm more anxious than before. It's supposed to be helpful. But if you are anxious, know that help is always available to you. You don't have to go through the subpoena process alone, and there are people out there who can support you and will support you.

[00:51:54] Thanks so much for listening. I hope you have a good one and catch you next time. Bye!