The duty of psychologists to maintain client confidentially is set out in the Australian Psychological Society (APS) Code of Ethics. However, there are some instances where this duty to maintain confidentiality is in conflict with the demands of the legal system, whether in response to a subpoena or if records are requested as part of an investigation by the regulatory body.
What is a subpoena?
A subpoena is an order issued by a Court that requires a person to be present at a time and place for a specified purpose, for instance for a psychologist to attend Court as a witness. Similarly, a subpoena to produce documents, or in some jurisdictions a notice to produce documents, is a Court order requiring the addressee to attend Court and produce documents to the Court.
What kind of records may be sought?
Notes of therapy sessions, client information forms, psychological test results, billing records, material provided by the client or to the client as part of the sessions are just some of the types of records that may be sought.
What to do if you receive a subpoena?
Step 1 – Check that the procedural requirements for the subpoena or discovery notice have been complied with such as:
- That the correct method of service has been used.
- That it has been served within the date set by the Court.
- That sufficient money to cover the cost of delivering the documents to Court has been provided.
Step 2 – Check with your client to see if they object to the records being produced, noting that you must still respond to the subpoena even if your client objects. If your client objects to the documents being produced, you must still respond to the subpoena.
Failure to respond or comply with a subpoena carries a risk of being found in contempt of Court which may result in a penalty (fine), criminal prosecution, or both. Client confidentiality is not a defence.
Civil Courts in NSW
A subpoena to produce documents is an order issued a Court – here, either the District Court of NSW or the Supreme Court of NSW. Failure to comply without lawful excuse with a validly issued subpoena constitutes contempt of Court.
The subpoena should spell out explicitly the relevant documents you must produce. If the request contained in the subpoena is very broad or vague, you have the right to apply to the Supreme Court to have it set aside. You should seek legal advice if you wish to contest the subpoena or are not clear about its implications.
Examples of grounds for objecting
- Not issued for a legitimate forensic purpose – frivolous or vexatious.
- Constitutes “fishing” (more directed at finding documents to see if the issuing party has a case than finding documents relevant to its case).
- Insufficient particularity in describing the documents.
- Access would pose a serious an imminent threat to the life or health of an individual.
- Appears to be a substitute for discovery.
- Too many documents or imposes too unreasonable a burden as compared with the potential relevance of the documents.
Procedure for objecting
- First, contact the issuing party and seek to have it withdrawn.
- If negotiations fail, apply to the Registrar to set the subpoena as follows:
- File and serve on the issuing party a notice of motion and supporting affidavit which adduces evidence supporting one or more of the above grounds
- Appear before the Registrar at the return of the subpoena.
Some documents that fall within the scope of a subpoena may be sensitive and thus confidential. A common solution to concerns you may have regarding confidentiality is for the Registrar to require the inspecting parties to sign a confidentiality undertaking.
Sample letters and responses
The APS has published some template letters for responding to subpoenas or legal requests for records as well as some FAQs about subpoenas.
In criminal proceedings, counselling documents are absolutely privileged at the committal stage. That means there are no exceptions to privilege and there can be no requirement to disclosure.
At the hearing stage, it is up to the party seeking production of the documents to convince the Court that there is a legitimate forensic purpose by establishing that:
- The documents have substantive probative value – the information contained in them must be relevant and must affect the probity of a fact.
- The information on the records is not available from any other source
- The public interest in allowing inspection of the records substantially outweighs the public interest in preserving the confidentiality
If the Court orders that the notes be accessed, you can request the Court to order limited access to protect the personal details of the victim.
Family Law Proceedings
Grounds for objecting (to a notice of disclosure or subpoena which is compliant with procedural rules)
- Relevance – there is no basis to believe that the documents will materially assist the person requesting them prove an issue in the case.
- Cost – compliance would be prohibitively expensive or oppressive. There is available a simpler and less expensive way to prove an issue in dispute.
- Notes of approved Family Dispute Resolution Practitioners are protected from being produced pursuant to section 10G of the Family Law Act ( unless there is a child at risk of abuse).
Procedure for objecting
- Complete Part F- Notice of Objection – the last page of the subpoena and file a copy to each of:
- The Court to which the documents are to be produced
- The party issuing the subpoena
- Attend Court on the date that documents should be produced, taking with you a copy of the documents in a sealed envelope. The Judge or judicial officer will consider your objections as set out in the notice. He or she may want to see the notes to assist with making the decision. You must allow the Judge to see them and you need to know that they will not be seen by anyone else at that time. The Judge or judicial officer then makes a decision about whether or not the notes can be accessed by the party requesting them.
If your client does not object to the notes being produced or the Court orders their production in spite of your objection you must send copies of your records to the court with an ‘Affidavit for Producing Documents Required’ by the due date. You can ask the Court to delete certain details in the notes before they are copied for inspection such as names and addresses of persons referred to in the notes.
APS – When the subpoena comes: Managing legal requests for client files – October 2012
APS – Psychologist’s records – Management, ownership and access – October 2012
APS – Guidance relating to the release of confidential counselling files by psychologists in NSW schools – July 2013
How can we help?
If you are looking for information or help in relation to the production of your counselling records, we can help you navigate the process.
Our health law team is highly respected in this area with specialist knowledge accumulated over 25 years.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.