Should Doctors Be Forced To Give Evidence Against You?

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Trust and confidentiality are an important part of the doctor patient relationship, and many people assume that if they see a medical professional for a health or emotional issue, their records will not be shown to a third party for any reason. It is this trust in confidentiality that lets many patients relax and feel comfortable to undergo examinations and be honest and open with their practitioners so they can get the most appropriate advice and treatment.

Psychiatrists in particular are considered trusted practitioners. Their patients have to be confident that their information will not be divulged so they feel able to discuss sensitive information and delve into previous trauma. The nature of psychological treatment means there is a high likelihood of patients revealing information that nobody else knows about, information that could damage a person’s relationships and reputation, as well as be used against them or publicly humiliate them if it is revealed in an open forum.

Unfortunately, the concept of confidentiality when it comes to medical practitioners is not always to be relied on. If a patient is suspected of being involved in a crime, their confidential medical or psychological records can be used as evidence against them, and their doctor may be compelled to take the witness stand. Many psychiatrists and medical practitioners are reluctant to break client confidentiality, but don’t always have a choice if a subpoena is used. In cases where a subpoena is issued and documents are provided by their colleagues or staff, the doctor might not even initially be aware that information has been revealed.

Subpoenas for psychiatric records increasing

The issue of psychiatric records being made public in court, especially in family law cases, was highlighted last year after a report was published in industry publication Australasian Psychiatry. The authors of the article claimed that lawyers often sought unrestricted access to patients’ records in their entirety as a means of finding information on them that could be used by their estranged spouses in family law disputes.

Under NSW criminal law, subpoenas can certainly be issued to medical practitioners. A subpoena is a document that is prepared by a party, such as the prosecution or defence, and then filed and issued by a court. It requires a person or body to provide documentation or other material that is believed to be significant in a legal matter. There are strict rules in place that govern how and when subpoenas are used, and these state that the issuing party must have a ‘legitimate forensic purpose’; which means that they must have a reasonable belief that the documents requested contain relevant information. This means that subpoenas cannot be used as a ‘fishing expedition’, or speculative attempt to dig up dirt.

According to the Australasian Psychiatry report, psychiatrists are receiving more subpoenas than ever, up to as many as six per month. Failing to comply with a subpoena can lead to a person being arrested and facing further legal action and, according to the report, many psychiatrists are reluctant to provide information to the courts, but they don’t have the time or money to fight every request.

AFP raids on psychiatrist’s office

A subpoena is not the only way that a person’s psychiatric or medical records can find their way into the public domain. More recently, the Australian Federal Police raided the office of psychiatrist Ishrat Ali as part of an investigation of allegations of disability support pension fraud. They also raided the offices of another psychiatrist, Dr Joseph D’Silva, who was believed to be a co-offender in the matter.

Allegations were that Dr Ali had signed off on a false report stating that a businessman from Sydney was intellectually disabled, so that he could fraudulently claim the disability pension. Evidence obtained during a federal tribunal suggested that Dr D’Silva had been paid $500 for the report, which stated that the patient was mildly mentally retarded and that his cognitive ability was in the extremely low range. This was then supported by another report from Dr Ali, who it was revealed had never met the patient.

Is there anything that medical practitioners can do about it?

In cases like the AFP raids and other criminal cases, if it is deemed to be in the public interest that confidential medical and psychiatric records are made public, there is little that medical practitioners can do. According to the Australian Medical Association (AMA), the public benefit of disclosure should outweigh the risk that patients may choose not to seek medical attention or that they might modify the information they provide to their doctor due to privacy concerns.

Doctors do have some legal recourse if they are unwilling to provide sensitive information. They can provide the documents under seal and ask the court not to release the records until it has heard their argument against disclosing them. They are also required to inform their patient if they have disclosed information from their confidential medical records for legal reasons.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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