Vol. 20 No 4 | Summer 2018
Women's Health -> Legal Update
Subpoenaed medical records: what should practitioners do?
Michael Gorton AM
Stephanie McHugh
BA, JD Law Graduate

This article is 6 years old and may no longer reflect current clinical practice.

Medical practitioners are often requested to release their patient’s medical records to courts under subpoenas. However, some medical organisations have concerns that subpoenas issued for improper purposes have the potential to stigmatise vulnerable people and damage patient-practitioner relationships.

What is a subpoena?

A subpoena is a court order issued to a person at the request of a party in a court proceeding. A party may seek a subpoena as a way to obtain relevant information for use as evidence in a court matter. Subpoenas can be issued to compel a person to give evidence in court, produce documents to the court, or both. A subpoena requires a person to provide the court with documents by a specified date and time. Importantly, these documents are provided to the court and not to the party who requested that they be produced.

What does a practitioner need to provide?

If a practitioner has been issued with a subpoena for production of documents, the schedule to the subpoena will outline the specific documents that need to be provided to the court. Medical practitioners are often requested to produce a patient’s clinical notes, test results, reports and referrals.

Confidentiality and patient consent

The obligation to maintain patient confidentiality is overridden when the law compels the disclosure of a patient’s medical record. If a practitioner receives a subpoena to produce the whole or a part of a patient’s medical record, it is advisable that the patient be informed promptly of the disclosure where appropriate. However, patient consent is not required when producing medical records under a subpoena. Even if a patient does not consent to the disclosure, a practitioner who is issued with a subpoena must provide the requested documents to the court. Failure to do so may result in contempt of court. The onus is on the patient to take action to oppose the subpoena and prevent the information being released.

Can a medical practitioner object to a subpoena?

If a medical practitioner believes that the whole or a part of a patient’s medical record should not be disclosed because it contains clinically sensitive information, or for some other reason, they can make an objection to the court. Practitioners will need to write to the court specifying the ground under which the objection is made (grounds include irrelevance, abuse of process, oppression or privilege). Subpoenas will not be valid if they amount to a mere ‘fishing expedition’. This means that subpoenas cannot be issued to obtain documents that fall outside the scope of the issues in the proceeding. Patients whose medical records have been produced to the court can also object to their inspection under the same grounds.

If a patient’s medical record contains sensitive information that may impact their mental health if released, a practitioner may request that the court use their discretion to limit access to those records. In forwarding information to the court, doctors can, in a covering letter, identify the sensitive material and suggest that the court consider how, when and to whom the information is provided.

Objections should be made by the patient before the day specified for the production of the material in the subpoena. Where an objection is made, a judge will conduct a hearing to determine whether the material should be produced. Practitioners wanting to object to the content of a subpoena should seek legal advice or guidance from their indemnity insurer.

In any case, subpoenaed material should be produced to the court and the material objected to should be placed in a separate sealed envelope with a covering letter asking for the objection to be considered by the court before allowing inspection.

Position of peak medical bodies

Medical organisations have voiced their concerns about the potential for patient confidentiality to be undermined in the context of subpoenas. Concerns have been expressed in submissions to the Australian Law Reform Commission’s review of the family law system. There are reports that medical records can be improperly sought in custody disputes in order to damage the relationship between the children and one parent. It has also been emphasised that effective psychiatric treatment requires patients to trust their practitioner. When medical records containing highly sensitive information are produced in court, this can re-traumatise vulnerable patients and irrevocably damage the patient-practitioner relationship.

The Australian Medical Association makes their position clear in their guideline, Ethical Guidelines for Doctors on Disclosing Medical Records to Third Parties, that the public benefit of disclosing a patient’s medical record must outweigh the risk that, because of such a disclosure, a patient may not seek medical attention or falsify information given to practitioners in future.

Things to remember

Subpoenas are legal documents issued by courts that require a person to attend court and give evidence or provide documents. A patient’s right to confidentiality is overridden when medical records are requested under a subpoena. Practitioners must comply with subpoenas and seek advice in the event they wish to make an objection to the court.

Failure to comply with a subpoena can result in contempt of court. If in doubt, consult your medical defence organisation or legal advisor.

For more information, please contact Michael Gorton.

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