As a GP, you could be served with a subpoena relating to a patient. Where family violence is present, dealing with a subpoena requires even more care than usual. For example, a woman who has experienced sexual assault may be able to claim the Sexual Assault Communications Privilege to maintain the confidentiality of your records if subpoenaed.
A subpoena is a stamped court order to hand over documents (a subpoena to produce), to attend court as a witness (a subpoena to give evidence) or both (a subpoena to produce and give evidence). Subpoenas are issued as part of a court case such as a criminal law proceeding or a family law dispute, at the request of one of the parties.
It is important to treat subpoenas with caution, especially when the person seeking the information is not your patient, e.g. is her ex-partner. First, check that the subpoena is valid: has a court stamp, has been served on you before the stated deadline and that conduct money has been provided.
You must respond to a valid subpoena – either to obey the orders, or to object. There are various grounds for objecting to a subpoena, for example: the request is too onerous, or the information is ‘privileged’ (protected by law).
Always contact your patient to let her know that you have been served with a subpoena, and to ask her how she would like you to respond. Note that you may be legally required to go against her wishes.
Subpoenas requesting documents will have a schedule of what material is being sought. Never hand over more than what is listed in this schedule.
In some cases, you or your patient may need legal advice. You could seek guidance from the AMA, the RACGP, your insurer, or a private lawyer. Your patient could get legal advice from her own lawyer, a community legal centre, or – if appropriate – the Sexual Assault Communication Privilege Service at Legal Aid.
|12. When both partners are your patients|