A psychologist objects to file being subpoenaed
In a recent case the children’s psychologist had his file subpoenaed for production in court. He “objected” to the parents’ viewing his file notes. The court agreed with his request, with some conditions.
Background:
The Independent Children’s Lawyer (ICL) issued the subpoena to the Psychology practice. The father then sought orders from the court for the parties and their legal representatives to have leave to inspect those documents. The mother and the ICL opposed the order being made, on the basis that the psychologist had expressed concern about the information being disclosed.
The psychologist complied with the subpoena and produced the requested documents. However, he also included a letter to the court noting that he objected to the parents reading the produced files on the following grounds:
- The disclosure of sensitive personal health records could pose a threat to the psychological wellbeing of that individual;
- The risk of undermining the relationship of trust between the child and the psychologist, and the effect on the therapeutic relationship;
- The conflict with the privacy requirements for psychologists; and
- Psychology is a specialist profession, and reviewing the file without explanation of the context is unlikely to assist the court.
As a result, the joint court expert (the family report writer), another psychologist, also recommended that the confidentiality of the family members be protected. They also recommended that the parents should not read the practice records, as this was likely to lead to further conflict.
Considerations:
The ICL wrote to the psychologist advising that the matter was listed for a court hearing and that, if the psychologist wished to maintain their objection, they would need to have a representative available on that day. The psychologist responded noting that it was their opinion that “if the parents have access to these files it will be detrimental to the relationship and could actually put them in a risk position.” The psychologist said they would “be unable to attend the court date”.
The ICL submitted to the court that it must weigh up the benefit to the court of having all relevant material available, against the potential for the material to negatively impact the best interests of the children. It was the ICL’s position that the court should not allow the inspection of the documents. This was done in order to protect the therapeutic relationship with the children, even if that meant certain relevant material was not available to the court.
Consequently, the court highlighted the various relevant legislative provisions, including the Convention on the Rights of the Child which requires the court to consider ‘the best interests’ of the child as a primary consideration, and also requires the court to consider the needs of the child and the impact of the conduct of the proceedings on the child.
The court considered the relationship between a psychologist and patient, and in particular, considered whether public policy meant the privilege of that relationship should be upheld. Above all, the court considered a USA case, which focused on the fact that the relationship is private, and is frequently personal, potentially embarrassing and often misconstrued. Therefore, taken out of context, the disclosure of notes from therapy could have “devastating personal consequences for the patient and his or her family….”
Decision:
The court, due to balancing the public interest of ensuring the court had all available and relevant evidence against the best interest of the children, determined that it was likely the documents would be relevant to the litigation. The court ordered that the ICL inspect the documents first, and redact any material that was not relevant to the matter.
Furthermore, the court also ordered that the parties’ legal representatives be allowed to inspect the original, unredacted documents to ensure nothing of relevance had been removed by the ICL.
This case is an interesting overview of the competing public policy factors of maintaining the therapeutic relationship, and ensuring courts and parties have access to all relevant information when involved in litigation (see; Riemann (2017)).
If you are a counsellor or a psychologist and have concerns about how best to respond to a subpoena for documents, please contact us. Our contact details are: phone (07) 3221 4300 and email at [email protected].
