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Family Law

Can you subpoena your ex’s medical records?

By December 21, 2020February 23rd, 2024No Comments

Can you subpoena your ex’s medical records, or can your ex subpoena yours?  A recent case in the appeals division of the Family Court tackled this issue, with a mother determined to find out if her ex-husband had any mental health diagnoses. She wished to know this information as she wanted to ask permission to introduce it as new evidence in the appeal she was running against parenting orders. She first found out the names of her ex’s treating practitioner’s through a subpoena to Medicare. In the current proceedings she was then able to successfully obtain subpoenas for each of the practitioners to produce the medical records of her ex. Let’s take a look at the case and the issues it raises:

  • How confidential are medical records, like clinical notes, test results, reports, referrals and mental health plans?
  • What should you do if you are subpoenaed in relation to your private medical information?
  • What can you do to try and stop information being released or having to comply with a subpoena?
  • What should you do if you think obtaining a subpoena for your ex’s medical records might help your case?
  • Why is this a controversial area of family law right now?

Just as in this case, ex-partners sometimes want to know if their co-parent has been diagnosed with a mental health condition as this may be relevant in their parenting matter. Or they may suspect, though the ex will not admit, that they are dealing with a diagnosed narcissist. Do people have the right to find out such information about their ex-partner? Or are personal medical records truly private and confidential? (Let’s leave aside for a minute the whole question of My Health Record and online databases.)

The answer to the question “Can you subpoena your ex’s medical records?” is yes: you can try. You can ask for either your ex or their medical practitioners, or both, to provide such evidence to a court, through subpoenas.

When it comes to doctors served with subpoenas, they often feel uncomfortable with the role they feel they are forced to play in family court litigation. But they don’t have much of a choice because unlike a lawyer/client relationship, doctor/patient confidentiality is overridden by an order of a court.

Both individuals whose medical records are being requested and their doctors can however object to the order. More on that below.

What is a subpoena?

A subpoena is essentially a court Order made at the request of a party to a case. A subpoena compels a person to produce documents or give evidence at a hearing or trial.

In applying for a subpoena you are asking the court make an order to compel someone to produce documents. You then apply to inspect the documents.

If people don’t comply with subpoenas they face serious consequences, including costs or even be found guilty of contempt of court.

Can you object to a subpoena?

Yes. There are limited grounds for challenging a subpoena which include irrelevance, abuse of process, oppression or privilege. As these are quite esoteric legal terms, it is a good idea to get legal advice on whether these could apply. Subpoenas will not be valid if they amount to a mere “fishing expedition” rather than having a “genuine forensic purpose”, so their scope has to be narrowly defined.

Either a patient or a medical practitioner can object to providing the medical records of a patient on these grounds.

Where an objection is made, a judge will conduct a hearing to determine whether the material should be produced.  

Judges can refuse to issue a subpoena on limited grounds, typically if the scope is too broad or due to irrelevance. In the Darley & Darley matter, the mother had not specified a time frame at all and her scope was described as “extraordinarily broad”.

Pseudonymised as Darley & Darley, the matter involves a self-represented mother and a father who was disengaged and did not appear at hearings. The mother’s applications for subpoenas were part of her appeal case against final parenting and property settlement orders.

In this case, the judge narrowed the scope for the mother by saying only medical records kept since the date of the child’s birth could logically relate to parenting issues. So a subpoena was granted for the father’s medical records relating to his potential mental health conditions only during a specific time period. This will no doubt still prove useful to the mother, since she is gathering evidence specifically relating to her parenting matter.

How do you file a subpoena?

To file a subpoena, it’s necessary to file a court form.  Once the court makes the subpoena, you then need to “serve” it on the person being issued with the subpoena, as well as all the other parties.

(RELATED: Say you want to serve a subpoena, but your ex can’t be found?)

You can find out all the detailed legal information you need directly at the Family Court’s website.

You can read the abovementioned case in full here.

Do you need assistance with a subpoena issue? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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