Can you comply with a subpoena and preserve the doctor-patient relationship?
Morag Smith, BJuris, LLB, Special Counsel, Civil Claims, Avant Law
Sarah Harper, Assistant Claims Manager, WA
Monday, 19 January 2015
Producing sensitive clinical records to a court can not only be devastating for a patient but can impact negatively on the relationship of trust and confidence needed with their doctor.
The trust relationship is crucial to optimum care of a patient. A recent article highlighted the concern felt by psychiatrists served with a subpoena to produce medical records to a court, particularly when these contain sensitive information about the patient or someone else. Where psychiatrists are aware of a risk of legal proceedings, it appears some are recording more limited patient notes because of concern that their records might be subpoenaed in court proceedings.
Limiting records in case they are subpoenaed can compromise patient care; it can also undermine the defence to any claim or complaint. Furthermore, failure to keep adequate notes can expose practitioners to allegations of professional misconduct in line with the Medical Board’s Code of Conduct.
A subpoena is a court order which overrides your duty of confidentiality to a patient. There are serious penalties for non-compliance. However, there are circumstances under which you can object. Following the correct procedure will allow you to apply to protect the information at a later date. If you wish to object to producing a document, seek legal advice from Avant about how you should respond.
Checklist if you are served with a subpoena
- Note the time and date you receive the subpoena.
- Check the date it must be complied with.
- Find the documents named in the subpoena. If you can, keep your originals. Place copies in sealed envelopes or boxes, clearly labelled with your return details.
- Prepare a letter to accompany the documents. This is to let the court know that you may be making a case for grounds under which you should not have to comply with the subpoena.
- Make sure you deliver the documents to the court, not the party who requested the subpoena.
- Keep a list of the documents you have sent.
Grounds for objection
Sexual assault communications privilege
In Victoria, in criminal proceedings a specific ground for objection applies for information provided confidentially to you by a victim of a sexual assault. The legislation governing this is not uniform nationally and it does not apply to proceedings in Federal Courts, including the Family Court of Australia. Contact our Medico-legal Advisory Service for specific advice if you wish to object to a subpoena on this basis.
Confidential and sensitive information
Another ground for objection is where disclosure of confidential records to a court may have significant adverse consequences for the patient and the therapeutic relationship. The risk of harm to people named in the records may outweigh the likely value of the information to the legal proceedings.
In our experience an objection on this ground can be difficult to establish, particularly where the other party can establish a legitimate forensic purpose in seeking access to the records. To protect the sensitivity of the records a court can restrict access to legal advisors only.
Public interest privilege or immunity
This applies where the court decides that production of a document would harm the public interest.
Relevance of documents
Subpoenaed documents need to be relevant to proceedings. You can object on this basis but the producing party will usually not be privy to and therefore know very little or nothing about their relevance. It will be a matter for the court to decide based on submissions made by the parties.
Key take outs
- Failure to comply with a valid subpoena to produce medical records is a contempt of court. In limited circumstances, you may have a valid objection to production of the records to a court.
- Your records should comply with the requirements of the Code of Conduct for doctors in Australia.
- Practitioners should avoid any temptation to limit the information in their records based on the possibility they may be subpoenaed at a later stage.
- If you are concerned about producing sensitive material, contact our Medico-Legal Advisory Service on 1800 128 268 for advice.
For further information read our article You receive a subpoena to produce medical records: what next?
- "Subpoenaing medical records – a violation of the doctor-patient relationship" published by vicdoc, 1 October, 2014.
- Good Medical Practice: a Code of Conduct for Doctors in Australia, paragraph 8.
- Chief Psychiatrist’s Guidelines, Subpoenas for documents, search warrants or other requests by police for information, published by the Mental Health Branch, Metropolitan Health and Aged Care Services Division, Victorian Department of Human Services.