WHEN ATTONEYS COME COURTING:
TESTIMONY SKILLS
Karen McKibben LCSW
2246 Bissonnet
Houston, Texas 77005
(713) 529-7400
William W. Morris
Looper Reed & McGraw, P.C.
1300 Post Oak Blvd., Suite 2000
Houston, Texas 77056
(713) 986-7000
TEXAS ASSOCIATION OF ADDICTION PROFESSIONALS
38TH ANNUAL CONFERENCE
JULY 26 – 28, 2012
WHEN ATTONEYS COME COURTING: TESTIMONY SKILLS
Testifying in court or at a deposition is not what mental health practitioners are trained to do. What the practitioneris allowed to say and or produce can be confusing and sometimes frightening. The definitions listed below should acquaint the person called to testify or produce records with some idea of what is being required of them.
DEFINITIONS
1. “Alcohol abuse” - The use of an alcoholic beverage which impairs the physical, mental, emotional, or social well-being of the user. 42 CFR § 2.11
2.“Contempt” – A willful disregard or disobedience of a public authority. Black’s Law Dictionary
3.“Covered entity” - (1) A health plan; (2) A health care clearinghouse; or (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. 45 CFR 160.103
4.“Deposition” – The testimony of a witness taken upon oral questions or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon trial of a civil action or criminal prosecution. Black’s Law Dictionary
5.“Drug abuse” - The use of a psychoactive substance for other than medicinal purposes which impairs the physical, mental, emotional, or social well-being of the user. 42 CFR § 2.11
6.“Diagnosis” - Any reference to an individual's alcohol or drug abuse or to a condition which is identified as having been caused by that abuse which is made for the purpose of treatment or referral for treatment. 42 CFR § 2.11
7.“Disclose or disclosure” - A communication of patient indentifying information, the affirmative verification of another person's communication of patient identifying information, or the communication of any information from the record of a patient who has been identified. 42 CFR § 2.11
8.“HIPAA” - Health Insurance Portability and Accountability Act of 1996, Public Law No. 104-191, 110 Stat. 1936 (1996)
9.“Individually identifiable health informationis information” - A subset of health information, including demographic information collected from an individual, and:
(1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and
(i) That identifies the individual; or
(ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual. 45 CFR 160.103
10.“Patient” - Any individual who has applied for or been given diagnosis or treatment for alcohol or drug abuse at a federally assisted program and includes any individual who, after arrest on a criminal charge, is identified as an alcohol or drug abuser in order to determine that individual's eligibility to participate in a program. 42 CFR § 2.11
11.“Patient" - A person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction.Texas Health and Safety Code § 611.001(1)
12.“Patient identifying information” - The name, address, social security number, fingerprints, photograph, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information. The term does not include a number assigned to a patient by a program, if that number does not consist of, or contain numbers (such as a social security, or driver's license number) which could be used to identify a patient with reasonable accuracy and speed from sources external to the program. 42 CFR § 2.11
13.“Person” - An individual, partnership, corporation, Federal, State or local government agency, or any other legal entity. 42 CFR § 2.11
14."Professional" - (A)a person authorized to practice medicine in any state or nation; (B)a person licensed or certified by this state to diagnose, evaluate, or treat any mental or emotional condition or disorder; or(C)a person the patient reasonably believes is authorized, licensed, or certified as provided by this subsection. Texas Health and Safety Code § 611.001(2)
15.“Protected health information” - Individually identifiable health information that is (i) Transmitted by electronic media;(ii) Maintained in electronic media; or(iii) Transmitted or maintained in any other form or medium. 45 CFR 160.103
16.“Psychotherapy notes” Notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record.Psychotherapy notesexcludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date. 45 CFR § 164.501
17.“Records” - Any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program. 42 CFR § 2.11
18.“The Rule” – Actually two rules authorizing the court to exclude persons other than parties and their spouses from the courtroom during testimony being given at trial. Rule 267, Texas Rules of Civil Procedure; Rule 267, Texas Rules of Evidence
19.“Subpoena” – A command to appear at a certain time and place to give testimony on a certain matter. Black’s Law Dictionary (See Rule 176, Texas Rules of Civil Procedure)
20.“Subpoena Duces Tecum” – A court process, initiated by a party in litigation, compelling production of certain specific documents and other items, material and relevant to facts in issue in a pending judicial proceeding, which documents and items are in custody and control of person or body served with process. Black’s Law Dictionary
21.“Treatment” - The management and care of a patient suffering from alcohol or drug abuse, a condition which is identified as having been caused by that abuse, or both, in order to reduce or eliminate the adverse effects upon the patient. 42 CFR § 2.11
22.”Treatment” - The provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party; consultation between health care providers relating to a patient; or the referral of a patient for health care from one health care provider to another. 45 CFR § 164.501
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