Can Medical Records be Subpoenaed in Sexual Abuse Cases?

Angela Sdrinis Legal is currently acting for victims of alleged sexual assaults in an Ashram. The five plaintiffs in these applications have brought proceedings in the County Court to recover damages for alleged sexual assault by the second named defendant whilst 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 some of their treaters.


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 section 32C of the Evidence (Miscellaneous) Provisions Act 1958, (the EMPA) from a court prior to issuing the subpoena was referred to be determined by Judge Carmody who handed down his ruling on 2 May 2018 in an unreported decision.


The starting point in these applications was the definition of confidential communications under the Act being as follows:


“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, Judge Carmody found that under s32C and 32D, “legal proceeding” included any civil, criminal or mixed proceeding.  Judge Carmody also noted that the statutory provisions override any common law principles relevant to waiver of medical privilege in these cases.


The statutory regime set out in section 32C of the EMPA is the overriding matter for determining if leave to serve a subpoena is to be granted. Judge Carmody said that the 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.


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.

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