Confidentiality: A recent family court matter, pseudonymised as Chrystie & Dellas, dealt with parenting orders for an 11 year old boy. During the proceedings, a psychologist objected to, and a Registrar struck out, a subpoena application for the psychologist’s clinical case notes of therapeutic sessions with the boy. The father then tried to overturn the Registrar’s decision but he was unsuccessful. Here’s why this is an interesting case.
There have been plenty of major reforms going on in family law over the past few years, most recently with things like the Court merger and the Court refocus on alternate dispute resolution. But there have also been a myriad of ongoing debates on other issues. One of these reform debates is around the clash between the confidentiality of therapeutic patient records and Family Court subpoenas.
Many people in the community mistakenly believe that doctors, psychologists and other health practitioners must keep patient information confidential under all circumstances. But that’s not always the case in family law matters.
Practitioners such as psychologists do have the responsibility to maintain client confidentiality as part of their ethical standards, clinical practice, and professional licensing regulations. However, the demands of the legal system can conflict with the confidential nature of a therapeutic relationship. This means that during the course of legal proceedings, health practitioners can be subpoenaed for their records.
Not only can this cause distress for clients who may have thought their personal health records were confidential and now find they are not. It’s also a bind for treating practitioners, who have to uphold competing obligations: patient confidentiality vs. obligations under the law.
The Australian Psychological Society (APS) says it “receives a large number of enquiries from psychologists unsure about how to respond to a subpoena, indicating that this is a complex area that causes anxiety and uncertainty”. It’s reasonable to assume there is a similar situation across the other treating professions.
Keeping records confidential
Practitioners (and their clients) can however object to a subpoena for a number of reasons. Further, client information may fall under an evidentiary privilege (meaning the information is protected from being allowed as evidence in a legal case). There is a bit of ongoing debate around this, as we’ll see below.
One group of practitioners is however automatically protected from having to divulge patient information under subpoena: namely, treating practitioners who provide services as part of Family Dispute Resolution (FDR). The same goes for any other practitioner who has been referred by the treating practitioner during the FDR process. The confidentiality protections during the FDR process don’t necessarily include records of FDR sessions during intake or assessment, however.
Objecting to subpoenas
Sometimes, subpoena applications are not legally valid due to technical reasons. Other times, the subpoena application is written in terms that are too broad, so that it’s judged to be a ‘fishing expedition’. Or, the information sought might be deemed to be irrelevant. In response to an objection to a subpoena, courts might order disclosure, no disclosure, or partial disclosure. Or they may impose restrictions and conditions for access or inspection. For example, viewing by lawyers only, with redacted details, or with no copying allowed.
But is it possible to object because the requested information is confidential? Theoretically, it is possible to object to a subpoena based on breach of confidentiality.
Attracting “public interest immunity”
The concept of public interest immunity has developed under common law and is also enshrined in the Evidence Act.
“Public interest immunity” cases have a public interest element, which outweighs the specific interests of an individual. This kind of immunity is especially important when subpoenas are issued to organisations where confidentiality fundamentally underpins their services.
Because the release of confidential records could reduce public trust in practitioners and discourage people from seeking professional help, it could attract public interest immunity. However, despite there being specific categories of public interest immunity, the therapeutic relationship is not yet one.
It has been argued (for example by the ALRC and the Family Court) that protecting the best interests of children should be a recognised category. Various judges in Family Court cases in recent years have also suggested that a therapeutic/counselling relationship could attract public interest immunity if the release of information “might victimise a parent or affect their parenting capacity”.
In the Chrystie & Dellas matter, the psychologist argued that releasing the confidential information would harm the disclosing child. The Court inferred that the psychologist was seeking public interest immunity.
The child’s revelations to the psychologist had been made on the basis of being confidential. The psychologist said that exposing the information now could “severely adversely affect the ongoing father-child relationship”. It would destroy the child’s trust and engagement with the psychologist and threatened to derail therapy.
The Judge called the psychologist’s arguments “compelling” and noted he “tentatively” accepted the idea that public interest immunity might apply in this matter. But the Judge stopped short of adding to the call for a new category of public interest immunity around health practitioners. Instead, he cited the ongoing need for more rigorous research and debate on the subject of public interest immunity generally. Ultimately in this matter, the Judge did not have to make the final call on whether the psychologist’s notes should attract public interest immunity. That’s because it was found that the psychologist’s notes would have been inadmissible evidence for other reasons. The application was dismissed and the psychologist’s records in this case remained confidential.
The problem of balancing the public policy factor of maintaining public confidence in therapeutic relationships, while also enabling courts to access relevant information, is still unresolved, uncertain and in need of reform.
You can read the Chrystie & Dellas judgment in full here.
And you’ll find all the technical info on subpoenas for family law proceedings at the FCFCOA page here.
Do you need assistance with a family law matter? 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.