Are my psychologist’s notes confidential?
We’re all used to the concept of doctor/patient confidentiality, but in some cases, notes from a psychologist can be used during family law proceedings.
A subpoena must be issued for the notes, and if the psychologist complies, those documents will be made available to everyone involved in the case.
Sometimes either the psychologist, or one of the parties involved in the hearing, may object to the notes being released and they can ask for psychologist/patient communications to be excluded from court proceedings.
The court has dealt with this issue on many occasions and has found that information that is usually confidential, such as psychologist’s notes, is not automatically protected from being exposed in court.
However, it may be appropriate to exclude all or certain parts of such material during a family law case.
There are several reasons why you can object to psychologist’s notes being produced in court. These can include:
- That the subpoena lacks a legitimate forensic purpose
- That the subpoena is an abuse of process or oppressive
- That the subpoenaed material is not relevant to the issues presented before the court
- That the information being requested is privileged
Practitioners such as psychologists do have the responsibility to maintain client confidentiality as part of their ethical standards, clinical practice, and professional licensing regulations.
Having a subpoena issued for their records can cause distress for clients who may have thought their personal health records were confidential and now find they are not.
It’s also a bind for treating practitioners, who must uphold competing obligations – patient confidentiality vs. legal obligations.
In some circumstances, the information can be restricted because its disclosure would be against “the public interest”. However, the court has held that a relationship between a patient and a psychologist or psychiatrist, does not attract public interest immunity.
The court will also consider the balance of what is relevant to the matter before the court, and how breaking that psychologist/patient confidentiality would serve the best interests of any children involved.
In some circumstances, the material may be redacted before everyone is allowed to see it and in other circumstances, only one party, such as the Independent Children’s Lawyer, may be able to inspect the material.
Issuing a subpoena for psychologist’s notes is a tricky and for those involved, an emotional area of family law. If you have any questions about this – either as a psychologist, or as someone in the middle of a family law case – please contact our office. Michael Lynch Family Lawyers are here to help you. Contact us on: (07) 3221 4300 or email: [email protected]
