The erosion of psychiatrist-patient confidentiality by subpoenas

Abstract

Objectives: We explore the reasons for the prolific use of subpoenas to gain access to psychiatric records in Australia. We examine the applicable legal principles and practices at the New South Wales (NSW) and Commonwealth levels, aiming to develop recommendations for Australian Governments to curb the inappropriate and harmful use of subpoenas. Conclusion: Unfettered legal access to psychiatric records is inconsistent with professional ethical guidelines and risks undermining the provision of quality psychiatric care to the community. The existing legal provisions are failing to protect psychiatrist-patient confidentiality. In NSW, the onus is placed on the psychiatrist and/or patient to make a complicated application to the court, to direct that a subpoena be set aside on the grounds of “Professional Confidential Relationship Privilege.” An absence of Commonwealth legislation to protect psychiatrist-patient confidentiality is used by some litigants in family law proceedings to disadvantage patients by stigmatising them, because they have consulted psychiatrists. We recommend that uniform legislation be implemented, giving effect to a primary rule of privilege with exceptions.