Our office is attemption to get mental health records for one of our defendant's. He is charged with murder and notified us of his intent to use an insanity defense. We want to obtain mental health records of a stay that he had in the past in a mental health facility to determine his history (or lack thereof) of mental illness. My question is what exactly is required in order to obtain these records. Do we need a court order or will a subpoena duecus tecum suffice? Thanks for all your help!


Steve Lilley
Asst. D.A. Hopkins County

It depends on what facility he was in. If it was a federally funded facility, like a state hospital or VA facility, you may have to do the affidavit and court order route. Call me or e-mail me and I'll send you some forms. If it's a private facility, a grand jury subpoena (if the case isn't indicted) is the best, but if it's indicted, I'd do a subpoena dueces tecum and have someone bring them to court.

If any records are to be obtained from a mental health provider, having regularly advised providers about these matters, I would strongly recommend an order. Both individuals and entities run gun-shy either of Chapt. 611 or HIPAA, and as an order is easily obtained, it rapidly dissolves any resistance.