Can confidential medical records be subpoenaed in sexual assault claims?

31st May 2018

BR, MP, ML, MN and FR Plaintiffs
SHIVA YOGA INC & KR Defendants

The five plaintiffs in these applications represented by Angela Sdrinis Legal brought proceedings in the County Court to recover damages for alleged sexual assault by the second named defendant while they were at an ashram conducted by the first named defendant.

On 30 January 2018, the second named defendant's solicitors issued a series of subpoenas to various plaintiffs' medical practitioners and counsellors seeking production of documents to the Registrar of the Court. In total, 16 subpoenas were issued. Objections to those subpoenas were made by the plaintiffs and three of the treatment providers, being two from the Centre Against Sexual Assault (CASAs) and one psychiatrist (referred to herein as Dr R).

On 20 March 2018, Judicial Registrar Gurry set aside each of the subpoenas after hearing argument from the respective parties' representatives. The issue of whether leave was required pursuant to s32C of the Evidence (Miscellaneous) Provisions Act 1958 (Vic) (EMPA) from a court prior to issuing the subpoena was referred to Judge Carmody, who handed down his ruling on 2 May 2018 in an unreported decision.

The plaintiffs had provided some medical records and reports on a without prejudice basis prior to the issuing of proceedings with a view to facilitating pre-issue settlement negotiations. On the basis of this conduct, the second defendant submitted that each of the plaintiffs had waived any confidentiality over their medical records.

The plaintiffs contended that Div 2A of the EMPA must be complied with in respect of confidential communications. The definition of confidential communications under the Act is:

‘“Confidential communication” means a communication, whether written or oral, made in confidence by a person against whom a sexual offence has been, or has alleged to have been committed, to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.’

Judge Carmody found that the communications between any and all of the plaintiffs in these applications and their respective medical practitioners and counsellors were confidential communications under the EMPA. In addition, his Honour found that under ss32C and 32D, ‘legal proceeding’ included any civil, criminal or mixed proceeding.

Noting that the statutory provisions override any common law principles relevant to waiver of medical privilege in these cases, Judge Carmody also found that the plaintiffs’ consent to the granting of leave to the issuing of subpoenas in this context was relevant to s32E(1)(a) of the EMPA. On the balance of probabilities, his Honour was satisfied that the evidence produced, subject to the subpoenas, would have substantial probative value to a fact in issue in the claims for damages and that this finding satisfied s32D(1)(a). Judge Carmody was also satisfied that there was no other evidence of a similar or greater probative value concerning the facts in issue, which is s32D(1)(b):

‘In the circumstances where each plaintiff is seeking civil redress by way of damages from the defendants for sexual assault, the public interest in having the evidence and the records subpoenaed outweighs the public interest of protecting the confidentiality of the protected confiders – that’s relevant to s32D(1)(c).'

Judge Carmody also dealt with the second defendant’s argument that confidentiality between doctor and patient was waived when a report by the doctor was served. Dr R and the plaintiff BR relied on the provisions of s28(2) of the EMPA. Judge Carmody found that the service of the medical report did not amount to waiver in respect of the clinical records.

Justice J Forrest considered the effect of s28(2) of the EMPA in Dr Geoffrey Kemp v The Medical Board of Australia, reported at 2017 VSC 691. At paragraph 65 he said: 

‘The purpose of s28(2) therefore is clear. In civil matters, the confidentiality of communication between doctor and patient are paramount; absent consent of the patient, the information remains privileged. This is consistent with the development in the twentieth and twenty-first centuries of concepts of privacy and confidentiality in the therapeutic relationships as identified in several of the cases I have referred to. In the legislation in this state, such concerns are reflected in the Health Records Act 2001 (Vic), the Health Services Act 1988 (Vic), and the Charter of Human Rights and Responsibilities Act 2006 (Vic) and, at a federal level, the Privacy Act 1988 (Cth).’

The statutory regime set out in s32C of the EMPA is the overriding matter for determining if leave to serve a subpoena is to be granted. Judge Carmody said that the second defendant had to satisfy the court on the balance of probabilities that:

  1. the clinical records will have substantial probative value to a fact in issue;
  2. other evidence of similar or greater probative value is not available; and
  3. the public interest in preserving confidentiality of confidential communications and the protected confider from harm is substantially outweighed by the public interest in admitting the production of the records.

Judge Carmody refused the application for leave pursuant to s32C to serve a subpoena on Dr R in respect of clinical records relating to BR. Given evidence from Dr R that in her professional opinion the release of her patient’s clinical records would cause her patient ‘trauma, exacerbate her anxiety and sleep disturbance and would diminish her ability to function in everyday life’, Judge Carmody found that the potential harm to BR if the clinical records were released outweighed any public interest in having or assisting the defendant to defend the claim for damages brought against him…‘The public interest is in encouraging people alleging sexual assault to obtain counselling and professional medical help is very high, and has legislative support as set out in this division of the EMPA.’

Insofar as the CASA records were concerned, even though some of these records had been provided pre-issue, Judge Carmody nevertheless found that privilege had not been waived and refused leave for the second defendant to serve subpoenas on the CASA’s involved. 

In summary, it is clear that s32C of the EMPA applies in civil and criminal cases and that defendants are required to seek leave to subpoena records that contain confidential communications in sexual assault claims. Provision of part clinical records and/or reports by a plaintiff does not mean that privilege is waived in relation to clinical records not served. However, a judge will consider the probative value of the evidence being sought and will weigh up the public interest in preserving confidentiality and whether this is outweighed by the public interest in admitting the production of the records. 

In this case the judge certainly took into account the fact that medical reports and some clinical records had been provided to the second defendant and referred to the fact that the second named defendant had evidence of similar or greater probative value concerning the matters in dispute, and that in these cases the public interest in protecting the plaintiffs from harm outweighed any perceived disadvantage to the second named defendant to properly defend each claim. 

Author's note: the defendant in this matter has lodged an appeal.

Angela Sdrinis is a personal injuries accredited specialist and the director of Angela Sdrinis Legal, a specialist institutional abuse practice. Angela has represented victims appearing before the Royal Commission into Child Abuse, is a member of the advisory board to the Knowmore Legal Service and has been called to give evidence before the Senate in the Forgotten Australians Inquiry and the Victorian Parliamentary Inquiry which resulted in the Betrayal of Trust Report.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Victoria Confidentiality Angela Sdrinis Sexual Abuse Sexual Assault Evidence Subpoena