you really understand your legal obligations with regards to releasing patient
medical records? The following quick guide to subpoenas, based on questions our
medico-legal experts are often asked, clarifies how to comply with this
What is a subpoena to produce?
subpoena is legal document that compels you to produce evidence. They are
usually issued by courts or tribunals.
Who issues subpoenas and where
do my documents go?
Subpoenas are issued by the Court, usually at the
request of a party to the legal proceedings. Documents should be produced to
the Court. Only documents set out in the ‘schedule’ of the subpoena should be
It is important that you do not send subpoenaed documents
to the person who asked for the subpoena. No person may access documents
produced to the Court unless the Court grants permission.
Can I object
to the subpoena? What if I feel it is not relevant or it will harm the
therapeutic relationship with my patient?
When served with a subpoena,
you must comply with it. Failure to comply without lawful excuse (discussed
below) could result in a warrant for your arrest, and order for you to pay
costs. A court may also find you guilty of contempt of court.
may be circumstances where you may wish to object to the subpoena to produce
documents. In such a case, you should seek legal advice from Avant as to
whether there are reasonable prospects of success in applying to have the
subpoena set aside or how else you should respond to the subpoena.
Importantly, a subpoena to produce should not be ignored and if you have any
concerns about the production of documents legal advice should be sought.
What if I don’t have the documents sought - can I just ignore it?
No. If you do not have the documents described in the subpoena, you should
write a letter to the Court and the issuing party informing them of this.
Can I produce copies and will the documents be returned to me?
subpoena should state whether copies or originals should be produced. Even if
the subpoena does not state that copies may be produced you may, in some cases
with the consent of the party issuing the subpoena, provide copies.
The subpoenaed documents will be returned to you, but only after the case is
concluded. If you provide copies you may wish to inform the court that the
documents may be destroyed by the Court instead of having them returned to you.
Do I need my patient’s consent and, if not, am I breaching
No. You may disclose health information without the consent of
your patient, where you are lawfully authorised or required to do so. The
privacy legislation does not override your legal obligation to comply with a
If you have questions about this issues or need
further advice, call our Medico-legal Advisory Service on 1800 128
Watch our 'Changes
to privacy laws: $1.7 million reasons to be up to date’ webinar in our Risk
Read and download our ‘Medical records: what
you absolutely should know’ fact sheet and also refer to our Getting
Started in Practice guide to record management
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