The clinician who has practiced long enough to see a few subpoenas eventually develops a complicated relationship with the word “confidentiality.” We say it constantly. We put it in our informed consent documents. We teach it in supervision. And then, inevitably, a situation arrives in which the word fractures into three or four different operational definitions that do not behave the same way at all. A patient threatens a third party and the duty to warn appears to require us to pick up the phone. A patient dies and their estate sues us for malpractice and we discover that the privilege we thought we held may or may not survive into the litigation. A patient is divorcing and the opposing attorney serves a subpoena demanding our process notes from three years of treatment. Each of these is described in our training as “a confidentiality issue,” but the legal mechanics are entirely different in each one, and the clinician who treats them as variations on a single concept is the clinician most likely to make a serious mistake.

This article is for Alabama clinicians who have not had a recent occasion to examine the actual legal architecture under which their confidentiality obligations operate. It addresses two specific legal frameworks that govern the everyday risk profile of clinical practice in this state. The first is the duty to warn under Alabama Code § 34-8A-24, which is the statutory codification, in modified form, of the Tarasoff doctrine. The second is the psychotherapist-patient privilege as interpreted by the Alabama Supreme Court in Ex parte Northwest Alabama Mental Health Center, a 2011 decision that is probably more protective of clinical records than most practicing therapists realize. I will close with a short section on the 2025 Alabama Rules of Court-Record Privacy, which came into effect on January 1, 2025, and which interact with the privilege in ways worth understanding.

The usual disclaimer applies and applies with extra force here. I am a clinical social worker writing about evidentiary law, and the consequences of getting this wrong are severe enough that no clinician should rely on this article as a substitute for actual legal counsel. The purpose of this piece is to give clinicians a clear enough working map that they recognize when they need an attorney and what questions to ask when they call one.

Tarasoff Was a California Case

The legal doctrine that most American clinicians refer to as “the duty to warn” originated in Tarasoff v. Regents of the University of California, a 1976 decision of the California Supreme Court. The basic facts of the case are familiar to anyone who has taken a graduate ethics course. A patient at a University of California outpatient clinic told his therapist he intended to kill a specific young woman, Tatiana Tarasoff. The therapist took the threat seriously enough to recommend involuntary commitment, which was not pursued. The patient subsequently murdered Ms. Tarasoff. Her family sued the university, arguing that the therapist had a duty to warn the intended victim. The California Supreme Court agreed, holding that the special relationship between therapist and patient created a duty of reasonable care toward foreseeable third parties when the patient communicated a serious threat of violence.

The doctrinal point that gets lost in most ethics trainings is that Tarasoff is a state-level appellate decision of one state. It does not have national legal force. The duty to warn, as a legal matter, exists in any given American jurisdiction only to the extent that the courts or legislature of that jurisdiction have adopted some version of it. Some states have adopted it broadly, some narrowly, some have rejected it, and many have replaced the common-law version with a statutory version that limits, expands, or otherwise modifies it. The result is a patchwork in which clinicians often operate under assumptions imported from Tarasoff itself that do not actually describe the law of their state.

Alabama has its own version, and it is not the California version. The Alabama version is statutory rather than common-law, narrower in some respects and more clearly defined in others, and it operates with a specific and unusually clean liability shield that Tarasoff itself never provided.

What Alabama Code § 34-8A-24 Actually Says

The Alabama duty to warn is codified for licensed professional counselors at § 34-8A-24 of the Alabama Code. Comparable provisions apply by case law and statute to other licensed behavioral health practitioners in Alabama, though the LPC statute is the most explicit and frequently cited. The statutory text addresses the situation in which a counselor’s patient has communicated a serious threat of physical violence against a reasonably identifiable victim or victims. When that situation arises, the statute provides that the counselor discharges the duty to warn and protect by making reasonable efforts to communicate the threat to both the identified victim or victims and a law enforcement agency.

Several features of this statute are worth noticing carefully. First, the threat must be of physical violence. Vague threats, expressions of anger, fantasy violence in the context of trauma processing, and statements of generalized hostility do not automatically trigger the duty. The statutory standard is more specific than the colloquial use of the phrase “duty to warn” suggests. Second, the victim must be reasonably identifiable. A patient who threatens “people like that” without specifying an individual or a clearly bounded group does not necessarily trigger the duty, though clinicians should not over-rely on this distinction and should consult counsel when the situation is ambiguous. Third, the discharge of the duty requires communication to both the victim and law enforcement. Calling only the police is not sufficient if the victim is reasonably reachable. Calling only the victim is not sufficient if law enforcement is reasonably reachable. The statute contemplates both.

The crucial fourth feature, and the one that distinguishes Alabama’s statutory regime favorably from the California common-law regime, is the liability shield. The statute provides that no monetary liability and no cause of action may arise against a licensed professional counselor who, in good faith, breaches confidentiality to discharge this specific statutory duty. The shield is not partial and not balanced against competing considerations. A counselor who in good faith identifies a credible threat of physical violence against a reasonably identifiable victim, and who communicates that threat to the victim and to law enforcement, is statutorily immune from suit for the breach of confidentiality involved in those communications.

This shield matters because the everyday clinical anxiety around the duty to warn is not primarily about whether to act. Most clinicians, faced with a credible threat against a specific person, know they should pick up the phone. The anxiety is about whether the act of picking up the phone will produce a malpractice suit by the patient or their family for the disclosure. The Alabama statute is unusually clear that it will not, provided the disclosure is made in good faith and within the statutory parameters. The clinician who acts to protect a third party in the situation the statute describes is operating in legally protected territory. The clinician who freezes for fear of being sued for breach of confidentiality has misunderstood the statute.

What the Statute Does Not Do

The duty to warn under § 34-8A-24 governs a specific verbal act in a specific clinical situation. It does not govern the broader question of what happens to a patient’s clinical records when those records become relevant to subsequent civil litigation. That broader question is governed by the psychotherapist-patient privilege, which operates under entirely different rules.

This distinction is the one that confuses clinicians most often. A clinician who has appropriately discharged the duty to warn under § 34-8A-24, by calling the intended victim and law enforcement to report a credible threat, sometimes assumes that they have also opened up the patient’s clinical record to subsequent discovery in any civil proceeding that follows. This assumption is wrong. The verbal disclosure made under the duty to warn is a separate legal act from the question of whether the written record of treatment is later discoverable. The two operate under different statutes, different case law, and different evidentiary standards. A clinician can have lawfully called the police on a Tuesday and lawfully refused to produce records to a civil litigant the following spring.

The framework that governs the records is the privilege, and Alabama’s privilege is unusually protective.

Ex parte Northwest Alabama Mental Health Center

The leading Alabama case on the scope of the psychotherapist-patient privilege in civil litigation is Ex parte Northwest Alabama Mental Health Center, 68 So. 3d 792 (Ala. 2011). The facts of the case are useful to know because they describe almost exactly the situation in which a clinician would most expect a court to carve out a public safety exception to privilege, and the Alabama Supreme Court declined to do so.

A patient at a mental health facility assaulted another patient. The injured patient brought a negligence action against the facility, arguing that the facility knew or should have known of the assailant’s dangerousness and failed to take protective action. To prove that knowledge element, the plaintiff sought discovery of the assailant’s psychiatric records held by the facility. The lower court ordered the records produced. The facility petitioned the Alabama Supreme Court for a writ of mandamus to block the production.

The Alabama Supreme Court vacated the lower court’s order. The Court held that the statutory exceptions to the psychotherapist-patient privilege did not include a general relevancy override or a public safety exception, and that the privilege protected the records from discovery even in a civil case where the records’ contents were highly relevant to the plaintiff’s theory of liability. The Court drew a careful distinction between the assault itself, which was a physical event witnessed by third parties and therefore not privileged, and the therapeutic notes regarding the patient’s mental state, which were privileged communications between patient and provider and remained shielded.

The significance of this holding for everyday clinical practice in Alabama is substantial and not widely appreciated. The Alabama Supreme Court has explicitly declined to create a public safety exception to the psychotherapist-patient privilege in civil discovery. The privilege is robust. It is not easily pierced by an argument that the records are relevant to a third party’s lawsuit, even when the records concern conduct that resulted in physical harm to that third party. A clinician whose former patient is the subject of a civil suit, and whose records are sought by the plaintiff in that suit, has substantial legal protection against compelled production, provided the privilege has not been waived by the patient or otherwise lost.

The privilege is not absolute. It can be waived expressly by the patient, and it can be waived implicitly by the patient’s own conduct, most notably by the patient placing their mental condition at issue in litigation they themselves have initiated. A patient who sues their employer for emotional distress damages, for example, has typically placed their mental condition at issue and has thereby waived the privilege with respect to records relevant to that claim. A patient who is the subject of someone else’s civil action, however, has not necessarily waived anything, and the records remain protected.

There are statutory exceptions in specific contexts. Mandatory child abuse reporting under Alabama Code § 26-14-3 is a long-standing exception, as is mandatory elder abuse reporting under § 38-9-8. These are limited carve-outs, not general overrides. The structural posture of Alabama law is that the privilege is the default and exceptions must be specifically grounded.

The privilege also survives the death of the patient. The Alabama Supreme Court and other courts within the Eleventh Circuit have repeatedly held that the patient’s death does not extinguish the privilege, and that the healthcare provider may assert the privilege on behalf of the deceased patient in subsequent litigation, including in malpractice litigation directed against the provider itself. This is counterintuitive but important. A clinician sued by the estate of a deceased patient may be in the strange position of needing to assert the deceased patient’s privilege as part of their own defense, rather than being free to disclose the contents of the record in self-defense. The interplay of privilege and self-defense in posthumous malpractice cases is legally complex and is the kind of situation that absolutely requires counsel.

The Dissonance That Confuses Clinicians

The combined effect of § 34-8A-24 and Ex parte Northwest Alabama Mental Health Center produces a structural pattern that initially looks contradictory and is in fact coherent once one understands what each rule is doing.

On the one hand, a clinician who learns in session that their patient is about to attack a specific identifiable person is required to breach confidentiality verbally, by calling the victim and law enforcement, and is statutorily immune from suit for doing so. On the other hand, after the attack occurs and a civil suit follows, the same clinician’s written clinical records about that same patient remain shielded by privilege and are not generally discoverable by the plaintiff.

This combination looks contradictory if one thinks of confidentiality as a single binary variable. It is coherent if one recognizes that the two rules are doing different jobs in different settings. The duty to warn operates in the moment of imminent danger, in real time, and is designed to prevent specific harm to a specific person. The privilege operates in the courtroom, after the fact, and is designed to protect the therapeutic relationship and the integrity of the clinical record from being weaponized in subsequent litigation. The two values, harm prevention and the integrity of the therapeutic alliance, are different values and the law treats them differently. Confidentiality breaks when life is in immediate danger and a phone call can prevent harm. Confidentiality holds when the danger has passed and the question is whether the record itself becomes evidence in a civil case.

A clinician who internalizes only the duty to warn, without internalizing the privilege, will tend to over-disclose in non-emergency contexts. They will produce records too readily when subpoenaed, will speak too freely with attorneys investigating a former patient, will fail to assert privilege when they should. A clinician who internalizes only the privilege, without internalizing the duty to warn, may freeze in an acute situation and fail to make a protective call that the law not only permits but requires. The Alabama framework expects clinicians to understand both rules and to apply each in its appropriate domain.

What This Means for Subpoena Practice

The most common everyday application of all of this involves the subpoena. A clinician receives a subpoena, typically from an attorney representing one of the parties in a civil case, demanding the production of records for a current or former patient. The immediate clinical instinct is sometimes to comply quickly, on the theory that a subpoena is a legal command and refusal would be obstruction. This instinct is wrong in most cases and can lead to serious malpractice exposure.

A subpoena issued by a private attorney in a civil case is not a court order. It is a litigation tool that compels production unless the recipient objects through appropriate channels or asserts an applicable privilege. The Alabama privilege described above is precisely such an applicable privilege in most clinical contexts. The correct response to a subpoena for clinical records, in most cases, is not to produce the records and not to ignore the subpoena, but rather to respond in writing within the applicable time frame, asserting the psychotherapist-patient privilege and notifying the issuing attorney that the records will not be produced absent a court order or a valid waiver from the patient.

If the issuing attorney still wants the records after that response, they must either obtain a written waiver of privilege from the patient or move the court for an order compelling production over the asserted privilege. At that point, the court must conduct an analysis of whether an exception applies, whether the patient has waived, or whether some other ground exists to override the privilege. Ex parte Northwest Alabama Mental Health Center indicates that Alabama courts will not casually find such grounds. The privilege, properly asserted, holds in most cases.

The clinician should never make this assertion on the fly. The correct workflow upon receiving a subpoena is to contact one’s professional liability carrier and one’s attorney before responding. Most professional liability policies include subpoena response coverage and will assign counsel for this exact purpose. The cost to the clinician is usually minimal. The cost of failing to assert privilege when one should have, by contrast, can include subsequent malpractice exposure to the patient whose records were disclosed without authorization, professional discipline by the licensing board, and significant reputational harm.

The 2025 Court-Record Privacy Rules

The other relevant legal development that intersects with privilege is the Alabama Rules of Court-Record Privacy and Confidentiality, which took effect on January 1, 2025. These are not statutes but rules of court promulgated by the Alabama Supreme Court governing the handling of confidential information in court filings.

The rules designate 91 categories of information as privileged or confidential and exempt from public access in court records. The rules apply to civil cases generally and govern what must be redacted before filing. Critically, the burden of redaction falls on the filing party rather than on the clerk of court. A litigant who files a document containing protected information without proper redaction is responsible for the consequences of that improper filing.

For clinicians, the practical implications are several. First, when clinical records do enter court proceedings, either through a valid waiver or through an order compelling production over privilege, the records remain subject to redaction obligations under the court-record privacy rules. Information falling within the 91 designated categories must be redacted before filing. Second, clinicians whose records are entered into a court file can have a legitimate interest in confirming that the redaction has been done properly, particularly if the filing involves sensitive material about third parties, family members, or other patients incidentally mentioned in the record. Third, the rules create an additional procedural layer that attorneys subpoenaing clinical records should be reminded of, since improperly redacted clinical material entering the public docket can produce harm to the patient that the privilege framework was meant to prevent.

The court-record privacy rules do not change the substantive privilege analysis. They are a second line of defense, addressing what happens when records do enter the court system rather than whether they should have entered in the first place. The primary defense remains the privilege itself, properly asserted in response to subpoenas and discovery requests. The redaction rules are insurance against the moment when privilege has been waived or overcome and the records are going into a public filing anyway.

What Clinicians Should Actually Do

I will close with a brief set of operational recommendations that I would offer to a clinician who has read this far and wants to know how to apply it. None of this is a substitute for an actual consultation with an attorney, and several of these recommendations specifically point toward such a consultation.

First, know the language of § 34-8A-24 well enough to recognize when its specific triggering conditions are present. A serious threat of physical violence against a reasonably identifiable victim, communicated by the patient to the clinician, is the situation the statute addresses. When that situation is present, the protective action required by the statute, which is communication to both the victim and law enforcement, is legally protected. Hesitation in that situation, for fear of being sued for breach of confidentiality, is hesitation based on a misreading of the law.

Second, never respond to a subpoena for clinical records on the basis of clinical intuition alone. Subpoenas trigger a privilege analysis, and that analysis should be conducted with the assistance of an attorney, ideally an attorney provided through one’s professional liability carrier. The cost of doing this correctly is low. The cost of doing it wrong is high.

Third, recognize that the privilege survives the patient’s death and may need to be asserted by the clinician on the deceased patient’s behalf, including in litigation brought against the clinician by the patient’s estate. This is one of the most counterintuitive features of the framework and one of the most likely to produce error in posthumous malpractice contexts.

Fourth, when records do enter court proceedings through valid channels, pay attention to the 2025 court-record privacy rules and the 91 categories of protected information. Reasonable redaction is the patient’s last line of defense against the public dissemination of clinical material, and clinicians should be attentive to whether the attorneys handling the matter are observing the redaction rules.

Fifth, and most importantly, understand that confidentiality in clinical practice is not one rule. It is several rules operating in different contexts and producing different outcomes. The clinician who treats it as one rule will eventually misapply at least one of the rules. The clinician who treats it as several rules, and who learns each one in its proper domain, will navigate the structure with substantially less anxiety and substantially less risk.

The patient sitting in your office trusts that their disclosures will be protected. That trust is the foundation on which clinical work is possible. The legal framework in Alabama, taken as a whole, does a reasonable job of supporting that trust, provided the clinician understands what the framework actually says. The trust does not require absolute confidentiality, which has never existed in any clinical jurisdiction. It requires reliable confidentiality, with predictable exceptions, exercised by a clinician who knows the difference between the situations that call for disclosure and the situations that do not. That is what the law in this state expects of us, and it is what our patients are entitled to.

Joel Blackstock is an LICSW-S and Clinical Director of Taproot Therapy Collective in Birmingham, Alabama, where the practice specializes in complex trauma and depth psychotherapy. This article is policy and clinical commentary, not legal advice. Clinicians facing specific subpoenas, threatened litigation, or duty-to-warn situations should consult an attorney experienced in Alabama mental health law before acting. Most professional liability policies provide coverage for subpoena response and consultation.