The paper states -
Victims of crime often find themselves powerless to prevent details from their past health records being aired in court or to third parties, often without their knowledge, by documents produced in compliance with a subpoena. Case examples in the ACT suggest this is an area in need of legislative reform to ensure victims are protected in our legal system and are not re-traumatised through this process. This is an area of concern for the ACT Health Services Commissioner who will be providing a report to Government on this issue in coming months.
A subpoena is an order from a court or tribunal, issued at the request of a party to a proceeding, which compels the person who has been subpoenaed to give oral evidence, to produce documents, or both. Subpoenas can only be issued if legal proceedings have commenced – this applies in both criminal and civil proceedings. Failure to comply with a subpoena can be deemed to be in contempt of court, and can attract penalties of imprisonment and fines. This paper will focus on subpoenas issued to produce documents, in particular health records of health consumers who are often victims of crime.
The key issues this paper will identify is that a person’s personal health records may be subpoenaed, produced, inspected, copied and divulged to third parties, entirely without the knowledge of the person to whom the health record relates. This occurs when the person is not a party to the proceedings before a court or tribunal, and is not notified their health records have been subpoenaed and produced. A victim of crime in criminal proceedings is not a party to the proceedings.
In the ACT, there is no legal obligation that requires either the record holder, or party issuing the subpoena, to inform the health consumer that their records have been subpoenaed or produced. It is possible for a person with a ‘sufficient interest’ (for example the person to which the health record relates) to raise an objection to the production of documents, or apply to the court for an order to set aside the subpoena in certain circumstances. The grounds of objection can be abuse of process on the basis of relevance of the subpoena, the subpoena is too wide and oppressive, is a “fishing” expedition, or privilege can be claimed in certain circumstances, such as sexual assault counselling communications privilege. However, the ability to object relies on awareness that the subpoena exists, and a person who has not been informed their health records have been produced, obviously cannot raise an objection. The record holder, such as a medical practice or hospital, may raise these objections but often do not have the time or resources to do so, and also may not be able to ascertain whether information is particularly sensitive for an individual.
In our community, people expect to be able to freely and frankly disclose their personal information to health practitioners, including psychologists, medical practitioners and counsellors, and this is certainly crucial for accurate diagnosis and treatment. Consumers reveal highly sensitive information on the assumption that the communicated information will be treated confidentially.
During the 2012-2013 financial year, a single health service provider in the ACT received over 450 subpoenas to produce personal health information. This indicates that defendants (or their legal representatives) in criminal proceedings may be invading victims’ privacy by seeking personal health records on a regular basis. The impact on victims of crime who have their personal health records subpoenaed can be devastating and, in some cases, it can re-traumatise them. Victims feel their right to privacy has been violated.
There is currently a practice in the ACT of defence counsel in criminal proceedings issuing subpoenas of a broad scope to obtain highly confidential medical records. Examples of subpoenas being issued for personal health information, which raise privacy issues, include:
- A criminal defence team issued a subpoena for the entire health records of a victim from a medical practitioner. While a copy of the subpoena was served on the Office of the Director of Public Prosecutions, the victim was unaware their personal records had been subpoenaed. There is no general obligation on the prosecution to advise the victim of the existence of the subpoena.
- In criminal proceedings, a self-represented accused person subpoenaed a copy of the entire personal health records of a victim of crime, and the contents of the records were disclosed to third parties including relatives of the accused person.This is a clear example when subpoenas have been misused.
- A subpoena issued in proceedings in the Coroners Court that was determining the cause of death of a person. The subpoena was for the health records of all consumers admitted to a health service provider facility (hospital) with assault related injuries within a certain time period.
- In domestic violence order proceedings in the ACT Magistrates Court, a subpoena was issued by the respondent’s solicitor, and was served on the applicant without explanation. The subpoena came completely unexpectedly and the person served was unaware what was expected of them in relation to the subpoena.
- A criminal defence team issued a subpoena for the entirety of the victim’s psychiatric records. The victim later discovered that their entire medical file, which detailed childhood sexual abuse, suicidal thoughts and major depression, had been provided to and read by all parties to proceedings and the judicial officer earlier in the court proceedings, without the victim’s knowledge.
- In family law proceedings, subpoenas are often issued for psychiatric records of the estranged spouse, as a ‘fishing expedition.’ Information can then be used to disadvantage the party by stigmatising them as they have consulted psychiatrists. In some situations, subpoenas may be issued as a mechanism to gain advantage using intimidation and humiliation of the opposing spouse.
There are also situations in which health records of a person who is not a party to proceedings in the ACT Civil and Administrative Tribunal are obtained, by means other than a subpoena. This may arise in health practitioner disciplinary cases involving a complaint of inadequate record keeping of a medical practitioner, and health records of numerous health consumers may be tendered in tribunal proceedings.
These examples highlight a number of issues with the current processes involving subpoenas in the ACT, and more generally, issues in relation to the release of a person’s health records. It is clear the existing legal provisions are failing to protect medical-patient confidentiality. Unfettered access to a person’s personal health records undermines a victim’s right to privacy and violates the confidential nature of health practitioner-patient relationship. Failing to safeguard confidentiality of health records poses a risk that members of our community are deterred from seeking medical attention, or not providing accurate disclosures about their symptoms, experiences and/or history, due to fear their privacy might be breached in legal proceedings.The Directorate indicates that
Legislation should be amended to strengthen protections of privacy for personal health records. This could be achieved by amendments to the Court Procedures Rules 2006 (ACT).
Suggested amendments include:
1. A right that a person with sufficient interest be notified of the subpoena as soon as practicable after it is issued. Such a provision would require the issuing party to serve the subpoena on any interested parties, including the person to whom the health record is sought. The health consumer will then have the opportunity to challenge or object to the documents being produced.
2. A right for the health consumer to be notified if their health records are used in court or tribunal proceedings and have been obtained by means other than a subpoena. For example, documents obtained during the investigative stage of a complaint of inadequate record keeping by a medical practitioner.
3. An express prohibition on ulterior use, or disclosure to third parties, of subpoenaed personal health information. The current obligation requires that a person must only use documents obtained by subpoena for the purposes of the case before the court or tribunal, and must not disclose the contents or give a copy of any documents subpoenaed to any other person (except a lawyer representing them), without permission of the court. Self-represented litigants may not adhere to this obligation due to lack of awareness.
4. A person to which the subpoenaed health records relate, whether they are a party (or not) to the proceedings before the court or tribunal, to have the first right of access to inspect the documents that are produced to determine whether they will lodge an objection.
The court should also consider developing an information sheet to highlight rights and obligations in relation to subpoenas for personal health information and enclose that information sheet with every subpoena issued. This would assist victims of crime whose personal health records have been subpoenaed by a defendant or their legal representative to understand their rights and obligations, and how they could object to the records being released if they thought it appropriate. The law must strike a balance between a victim’s right to privacy and an accused person’s right to a fair trial. Current legislation does not adequately protect victims’ right to privacy when seeking health services and additional safeguards are required.
The quasi-privilege set out in section 126B of the Evidence Act 1995 can be used to abolish subpoenas which are unjustified and preserve a victim’s right to privacy to some extent. However, knowledge of how that section operates needs to be more widely understood. Information on how section 126B operates should be included in the information sheet, previously suggested, as a means of educating people on their rights and entitlements. The introduction of reforms aimed at protecting the rights and privacy of individuals who are the subject of subpoenas will assist victims of crime to prevent details from their past health records being aired in court or to third parties, often without their knowledge, by documents produced in compliance with a subpoena.