There is an inherent trust relationship established between doctors and their patients. It is necessary that patients fully disclose their personal information to receive the appropriate treatment and in turn, do so with the expectation that their doctors will protect this confidential information.

Doctors have a professional, ethical and legal duty to protect their patient’s personal information. But what happens if the law requests you to disclose information? What do you do? There are certain circumstances where the law authorises a doctor to disclose information from a patient’s medical record. One of these areas is where a doctor receives a subpoena to produce.

Below, we answer some frequently asked questions about a subpoena for medical records and when does the law require a doctor to produce a patient’s personal information.

1. What is a Subpoena?

A subpoena is a Court order requiring a person (usually a non-party to the Court proceedings) to attend Court to either give evidence or produce documents. Essentially, it’s a legal document compelling you to provide evidence.

Typically, the Court issues subpoenas at the request of a party to the litigation. The subpoena should clearly set out what documents the party needs to produce and when, and is typically contained in the subpoena’s ‘schedule’. The party will need to produce only those documents.

2. Where Do I Send the Documents?

The subpoena should clearly set out where the disclosing party will send the documents and will usually specify the Court’s address. The party should never send the documents to the party asking for the documents under the subpoena.

It may be that the patient and/or another party may oppose the disclosure of the documents and information. If that is the case, the Court will make a determination on the access orders to the documents.

3. What If I Object to the Subpoena?

Provided a subpoena has been validly issued, a party’s failure to comply may constitute a contempt of Court, so you must carefully consider the terms of the subpoena and respond accordingly.

If you wish to object to the subpoena and do not believe you should produce the documents, you should immediately seek legal advice to see if you have prospects of success. Alternatively, you may object to the scope of the subpoena, that is, the documents you need to produce. Again, you should seek legal advice on how you should respond to this.

If the objections are about access to the documents and who should have access, this can be argued before the Registrar, who will ultimately make a determination on the access orders.

4. I Don’t Have the Documents They Requested. Now What?

If you don’t have the requested documents, then you need to write a letter to the Court and the issuing party notifying them of this. You can’t just ignore the subpoena. As discussed above, failure to comply with it can result with you held in contempt of Court.

5. What About My Patient?

Although you have a professional, ethical and legal obligation to maintain your patient’s privacy, this does not apply when you are lawfully authorised to disclose. You do not need the consent of your patient.

If you do receive a subpoena, you should where appropriate, inform the patient of the disclosure and make a note of this in their records.

If you are served with a subpoena to produce and have concerns about how you need to respond, get in touch with our litigation lawyers to discuss your options.

Questions? Let us know on 1300 544 755.

Emma George

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