Understanding Subpoenas - Texas Council on Family Violence

II. RESPONDING TO A SUBPOENA 29Licensed or certified: For the mental health privilege to apply, the verbal or writtencommunication by the client must be made to a person who is “licensed or certified bythe State of <strong>Texas</strong> in the diagnosis, evaluation or treatment of any mental or emotionaldisorder” in the course of consultation, diagnosis, evaluation, or treatment.Social workers: By legal definition, only licensed clinical social work involves “thepractice of providing evaluation, diagnosis, and treatment to individuals, families, orgroups with mental or emotional conditions or disorders or who are adversely affectedby social or psychosocial stress or health impairment.” 37 Therefore, only licensedclinical social workers (LCSW) can invoke the “mental health” privilege.Other classes of social workers (licensed master social worker, or LMSW, and licensedbaccalaureate social worker, or LBSW) can claim the privilege they 1) work underthe supervision of an LCSW and 2) the services rendered must be directly related tothe diagnosis and treatment of the client’s mental or emotional condition. 38If your agency is served with a subpoena and doubt that a particular communicationor document can be tied to the client’s diagnosis and treatment, err on the side ofclaiming the privilege. Disclosure may compromise the client’s confidence and safety,which in turn may undermine the crisis center’s goal to provide a safe haven forvictims. In deciding whether privilege should attach, the court will ultimately decidewhether the document or communication fit, but the court can do so in camera, oroutside the view of the party seeking the information.37 Tex. Occupations Code Ann. § 505.0025.38 22 Tex. Admin. Code § 781.102.UNDERSTANDING SUBPOENAS