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As a doctor, you have a professional, ethical and legal duty to maintain your patient’s confidentiality. So what do you do when you receive a subpoena asking for you to give your patient’s medical records to a court? A subpoena is a court order to provide certain information that you must respond to or risk facing a penalty. As a result, it is important to understand how to balance your obligations to your patient with your obligations to the court. This article will explain:

  • how to deal with a subpoena for a patient’s medical records;
  • when you can object to or challenge a subpoena; and
  • how to respond and provide those documents.

What Is a Subpoena?

A subpoena is a court order requiring a person to either:

  • attend court to give evidence in a court proceeding; or
  • provide documents to the court.

In addition to the court, other federal and state authorities such as WorkCover have the power to issue subpoenas. Only someone already involved in a matter (i.e. a court case) can issue a subpoena. A subpoena to produce documents, such as a patient’s medical records:

  • should be clearly marked with the court’s seal (stamp);
  • will list the documents required; and
  • state where and by when they need to be sent.

What Happens if I Do Not Respond to the Subpoena?

You must respond to a subpoena. Failing to respond to a subpoena can have serious consequences. It is considered to be ‘contempt of court’, and penalties can include a fine, jail time or both. In some circumstances, you can object to the subpoena.

What if I Object to the Subpoena for Some Reason?

In some circumstances, you can object to the subpoena. For example, you can object if you believe the volume of documents requested is unreasonable and would be difficult for you to provide. You can obtain legal advice to assist with any objection to a subpoena, which may involve narrowing the scope of the subpoena, or reducing the number or types of documents requested. Any objection to the subpoena involves writing to the person that issued the subpoena and seeking their consent to withdraw or to narrow the subpoena. If they do not agree, you will need to make an application to the court. Courts will set aside subpoenas for certain reasons including:

  • abuse of process. This is when the court decides the subpoena was not issued for the purpose of obtaining information relevant to the legal proceedings; and
  • oppression. This is when the subpoena would impose an onerous obligation on the subpoena recipient, or where a subpoena is issued to ‘fish’ for information.

What About My Patient’s Privacy?

As a court order, the subpoena is a valid exception to your duty to maintain your patient’s privacy and confidentiality. You do not need to inform your patient about the subpoena, however, you may wish to do so. You should also make a note of the subpoena in their records. If your patient’s medical records contain information that should not be disclosed, such as a domestic violence victim’s address or other identifying information, you should seek legal advice on how to handle this when responding to the subpoena. For example, you may be able to provide the documents with certain information ‘redacted’ or covered up.

How Do I Provide the Documents?

You should provide copies of the documents. You should not provide the originals unless the subpoena specifically requests originals. If it does, keep a copy of the originals for your records. You should send the documents by post in a sealed envelope with a copy of the subpoena enclosed. Make sure you send them to the court at the address detailed on the subpoena, not to the person who has requested them.

What if I Do Not Have the Documents?

If you do not have the documents requested in the subpoena, you should respond in writing to the court and the person issuing the subpoena to advise them of this. You should not ignore the subpoena, as not having the documents is not a sufficient excuse for failing to respond. A failure to respond in any way can still be considered contempt of court and may result in the penalties, as set out above.

Key Takeaways

A subpoena for medical records is an important court order that you should not ignore. This is the case even if you do not have what the subpoena is asking for, or if you do not believe the documents should be provided. Your duty to protect your patient’s privacy and confidentiality is no excuse for ignoring a subpoena. It is important to seek legal advice if you have reason to object to the subpoena. If you have any questions about subpoenas for medical records or other documents, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.


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