Subpoenas for client files

Adam Davis

29 July 2021 06:23

Subpoenas can be confusing and lawyers can sometimes overstate their positions and / or be belligerent, but at the end of the day a subpoena is a legal order that will typically need attention. As an advocate and support for both our customers and ultimately their clients we see our role as being to help guide everyone through this process and to try to avoid poor outcomes on all sides.

NB: actioning a subpoena is outside the scope of normal virtual admin and would be charged on according to the time taken.

Steps

Verification checklist

First we will read the correspondence and be looking to answer these questions:

Who is it from and who are they purporting to represent
Is this a deceptive document? Does it look like a subpoena? Does it have the stamp of the court, is it just an unenforceable legal sounding request from a solicitor or another UHG request because someone applied for life insurance?
What is the document itself? A subpoena will typically be titled "Subpoena to Produce" but it could be a Summons (A subpoena to appear),
What is it asking for? Generally the schedule (3rd page) is the most instructive and may look a bit like this:

Originals and/or copies of all documents including but not limited to all clinical notes, memoranda, patient treatment notes, patient records, documents, correspondence, file notes, diary notes, medical reports, statements, records of interviews and all other documents, records and writings relating to consultations with, reports upon, and (if appropriate) treatment of {ClientFullName}, born {ClientDOB}, for the period {SubpoenaDateFrom} to {SubpoenaDateTo}.

Do we have any record of this client? Who did they see if they were a client of the practice?
Is there a named clinician? Are they still current? Where is the client file?
Was it received / served on or before the "last day for service"? ie... count up the days from the date on the envelope plus the defined minimum service period in the subpoena - did it get posted late? Should it have been served in person? This depends on the court and their rules... always err on the side of responding rather than not and consider getting a legal opinion if you've missed the last service date.
Are the medical records protected under SACP Privilege? That is, has this client ever been alleged to be the victim of sexual assault? Not proved, not before the treatment, but ever alleged.
Is there consideration? Did they include the legal requirement for a small (typically $30) payment to cover costs?

Notification

We will create a support ticket and advise you of the basic details such as the who, what where and when of the subpoena and the status of the client file paperwork. We would then give you a chance to review the file and instruct us on which options you would like us to follow through with. The options would typically include some or all of the following:

- Acknowledging the receipt of subpoena to the Applicants solicitor
- Contacting the client to confirm they are aware of this request in case they have specific concerns we may take into account when responding
- Preparing the paperwork or electronic records for submission to the courts
- Drafting an objection letter (typically this would cite, client welfare, third party disclosures or concerns over the complex nature of the medical notes)
- Entering the invoice and payment for the administrative costs

Client Notification

Our suggested wording for the "Task - Subpoena Notification to Client (Email)" template is:

Hi {RecipientPreferredName}

RE: Subpoena for your records in relation to (insert reference number or description)

I wanted to let you know that we have received a subpoena for your clinical records with regards to the treatment you received from {ClientPreferredDiaryFullName}.

Please be advised that the subpoena must be actioned by law however an objection to the release of certain details will be submitted if required. Please contact me to go through any questions you may have and we will book in a call or appointment if necessary.

Kind Regards,

Paperwork Preparation steps:

In order to comply with the subpoena will will generally try to make sure that any paperwork in archive is accessed and scanned into the electronic records.

Typically this will require you to return the subpoena itself along with the client file.

Some courts will allow upload of documents to a secure server, others will request them via email! For instance the family court even specify the subject email subject line you should use:

Subpoenaed material – file number – surname of parties – named person on subpoena

If you would prefer that the subpoena is posted then that is no problem - we typically suggest registered post (or Express Registered Post) to prove your attempt at compliance in case it is not received.

NB: How to download a whole file support articles for Halaxy and PowerDiary.

Objections to subpoenas

As a health professional you are well within your rights to object to a subpoena if you feel that the dissemination of your client file amongst all parties could harm. The APS has an excellent guide to the grounds that could constitute reasonable grounds for objecting to the subpoena. See page 14 onwards of the September 2016 guide titled "Managing legal requests for client files, subpoenas, and third party requests for psychological reports".

An example letter to the court could be based on this template:

To Exhibits Clerk,

RE:

Court Ref No:

OBJECTION TO SUBPOENA for production addressed to The Proper Officer - {YourPracticeName}.

Please find enclosed the documents named in the subpoena dated [DATE]. These documents are provided to the court to comply with the subpoena.

I object to the inspection of these documents by any party on the following bases:

The information contained in the documents has no relevance to the matters in dispute in the proceeding and I am concerned that they have been requested as part of a 'fishing expedition'.
The documents requested are sensitive personal health records, the disclosure of which could pose a serious threat to the life or health of the individual, which may include harm to physical or mental health
Even if the potential threat to the health of the individual is not such that it could be classified as ‘serious’, the effect on treatment caused by the undermining of the relationship of trust between myself and the client could cause long term or irreparable harm to the wellbeing of the client and the therapeutic relationship, possibly not just with myself as their treating psychologist but with psychologists in general.
To disclose the information contained in these documents will conflict with my obligation under privacy legislation not to release information that would have an unreasonable impact on the privacy of a person other than the client.
Psychology is a specialist profession. Reference to the information contained in these documents without explanation of the context in which they are written is unlikely to assist the court, and has the potential to cause a significant miscarriage of justice.
The documentation requested contains confidential information regarding a sexual offence or offences and production may not be compellable by the party issuing the subpoena without the court’s prior intervention. I request that the court have regard to any relevant provisions contained in the appropriate Evidence Act.

Yours sincerely,

Note: Even if you do object, you still need to comply. There are processes that allow you to deliver up the material in a way that would remain sealed from the parties until the judge or magistrate has been able to rule on the inclusion or exclusion of the material.

No records of this client

Occasionally a subpoena will be received for a client that you have no records for. If that is the case we will would suggest returning the subpoena and a letter of this form:

To Exhibits Clerk,

RE:

Court Ref No:

With regards to the subpoena request dated [DATE] for party [CLIENT NAME], the practice has no records on file for the concerned party.

Yours sincerely,

Additional costs

So what if the $30 cheque doesn't cover your time?

Again, the APS says:

Some courts and tribunals may have set fees for costs incurred as a result of subpoenas. The APS also has a National Schedule of Recommended Fees, that includes a fee for photocopying of the file for subpoena or other reasonable purposes. If costs cannot be agreed with the solicitor who issued the subpoena about your claim to meet your reasonable expenses, then at the time of writing to the court/tribunal to return the subpoena (and where relevant, setting out grounds for objecting) you should also inform the court/tribunal that you intend to make an application for costs.

So in other words, you would be applying to the courts to cover your additional costs, you can't send a bill to the solicitor who initiated the subpoena.

Readings