Are My Notes Confidential?

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As featured in the Counselling Australia Journal, Volume 24, Number 2. With thanks to Michael Lynch Lawyers.

Professionals are often engaged to assist a party in navigating issues arising from the breakdown of their relationship. Family lawyers are frequently asked by these treating professionals ‘Are my notes confidential?’.

The starting point is non-confidentiality. Everything said to a GP, paediatrician, therapist, counsellor, psychologist and other allied health practitioners can be disclosed and it can be subpoenaed. Why? So courts can learn the truth.

In parenting matters, the question that the Court must determine is “What is in the best interests of the child?”. This is the paramount consideration and if there are documents that can assist the Court to understand what parenting arrangements may meet the child’s best interests, then the Court should have access to them.

Practitioners such as psychologists and doctors have a responsibility to maintain client confidentiality as part of their ethical standards, clinical practice, and professional licensing regulations.

It is understandable that clients may become incredibly distressed when a subpoena is issued to their treating practitioner for their notes in circumstances where they thought that their personal health records were confidential.

The subpoena recipient (for example the psychologist or medical practitioner) and the person affected by the issuing of the subpoena (the husband or wife in the Court proceedings) may object to the production of documents under a subpoena.

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Some of the grounds for objection include but are not limited to:

  • That the subpoena lacks a legitimate forensic purpose
  • That the subpoena is an abuse of process or oppressive
  • That the subpoenaed material is not relevant to the issues presented before the Court
  • That the information being requested is privileged

In a recent decision of Vitalis & Kazan (No 2) [2022] FedCFamC1F 601 (19 August 2022), the Court was asked to determine parenting arrangements for two children aged 8 years and 4 years.

In the proceedings, Ms Kazan served a subpoena on Ms Vitalis’s gender reassignment surgeon (“Dr O”) and on her medical insurer. Ms Vitalis objected on the ground of relevance.

It was noted by the Judge that “in any parenting proceeding any parties’ mental health issue is potentially relevant to the extent that it may impact on parenting capacity”.

Ms Vitalis accepted that her mental health was a relevant fact potentially in issue and did not object to subpoenas that Ms Kazan had issued to her identified treating mental health practitioners. She did object to the subpoena issued to Dr O on the basis that “the biological surgical procedures Dr O was involved in will not illuminate any issue relevant to parenting capacity” and was a “fishing expedition”.

Ms Kazan submitted that Dr O may have engaged in an assessment of Ms Vitalis’ mental health which was relevant to the issue before the Court. It was noted by the Judge (at paragraphs 21 and 22) that “ [A]s part of gender reassignment, the nature of the surgery might reasonably require the surgeon to satisfy themselves that the patient meets the criteria under the World Professional Association of Transgender Health Standards of Care Guideline. That might reasonably require the surgeon to engage in their own assessment of the patient’s mental health status. In this case… it is at least possible that Dr O was required to and did undertake his own independent mental health assessment of Ms Vitalis, taking into account Ms Q’s [Ms Vitalis’ treating clinical psychologist] opinion but not merely relying upon it.”

Due to the intimate nature of the surgery, Ms Vitalis maintained an objection to the subpoena on privacy grounds. It was also submitted that the Court “should control the use of subpoena in pursuance of the overarching purpose, of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Rules”), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

The Judge in this case noted that “whilst privacy grounds would be relevant if the information sought went only to the physical process, where it is conceded that there is a real possibility of a mental health assessment, and therefore a genuine forensic purpose, privacy is not a proper ground for objection. While Ms Vitalis’ position is understandable, given the sensitive nature of the procedures involved, the nature of the family law jurisdiction, in which the Court enquires into the welfare and best interests of children, means that the public interest and children’s interest in the Court having all available relevant evidence about a parent’s mental health outweighs the parent’s right to privacy.

The Judge went on to say “Whilst the Court should, and does, exercise close control over the issuing of subpoena as part of the application of the overarching purpose, I am not persuaded that in the context of these proceedings the subpoena to Dr O is inconsistent with the overarching purpose.”

It was submitted by Ms Kazan that the subpoena to Ms Vitalis’ medical insurance company was appropriate as it would give details of other medical practitioners who had treated Ms Vitalis that “were not disclosed, and who Ms Kazan says should have been”.

In many cases, the Judge said that the subpoena to the medical insurer “would be a step too far, but each matter requires consideration on its own facts.” Here he said (at paragraph 38) that “Where a party’s mental health is an issue in the proceedings, and where it appears that she has taken an approach to disclosure which raises issues about the selectivity and reliability of that disclosure, it may be appropriate to allow a subpoena… to ensure that the Court has the best available evidence when considering the best interests of the children.”

The Judge held in this case that there was a “genuine forensic purpose to each subpoena” in this matter and allowed access to the records produced by Dr O and the medical insurance company.

What to do if you get a subpoena?

  1. Read the subpoena.
  2. Write down your thoughts:
    • What documents am I being asked to provide?
    • Do these documents exist?
    • Are the documents relevant to an issue in dispute?
    • Are the documents privileged?
    • Should I object to the subpoena?
    • Is the Subpoena being used for a proper purpose or is it too broad, oppressive, a mere ‘fishing expedition’?
    • What date do I have to comply by?
    • Have I received conduct money?
    • How much will it cost me to produce the documents (eg photocopying costs)?
    • Where do I send the documents?
  3. Get legal advice, if required, and speak with your insurer.

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