NSW Permissible to Subpoena Medical Records?

[Dad05]

Hi guys,

Just wondering if anyone knows if it is possible or permissible to subpoena medical records in family court, especially relating to treatment for mental health issue.

Thanks in advance

 

[Migz]

Yes I understand that you can: Subpoena - Family Court of Australia
I hope this helps.

 

[Dad05]

Thanks Migz,

That was useful information. It's interesting that the other party can object to subpoenaed material being produced. I wasn't aware of this, especially interesting that they are able to object on grounds of "The documents are privileged".

I would assume that medical records or transcripts between doctors and patients would almost certainly full under this.

Thanks

 

[sammy01]

Why? Doctor-patient confidentiality.

Having a mental health condition isn't grounds to stop one parent having involvement with the kids (I'm assuming that is the purpose here), and the fact that the person is seeing a doctor means they are accepting they have a condition and are seeking proper treatment for it.

 

[MartyK]

You can seek leave of the court to subpoena medical records. In deciding whether or not to grant the subpoena and/or to uphold any objections to the subpoena, the court will weigh the probative value of the evidence against a number of other considerations. If the probative value is higher the court will usually grant it.

I do know of cases where hospitals have objected to subpoenas for the production of documents, due to professional privilege and patient confidentiality, and won.

I also know of cases where ICL's, including at times in the absence of adequate reasons, have taken it upon themselves to subpoena all medical records for one or both parties and even asked parties to list all treating specialists and sign wavers giving them full access to all medical. Quite unethical behaviour in my view.

 

[Tim W]

Are we talking about your records, or those of your estranged spouse?

The reason I ask is because the court is not generally inclined to facilitate a mere fishing expedition.

People have asked similar questions many times in here - you may find an archive search helpful.

 

[Dad05]

Thanks all for the response.

Tim W, I was talking about the ex-wife's. I do understand that the courts don't facilitate fishing expeditions and I wouldn't ask them to.

Sammy01 I was not implying that a person who has a mental health issue cannot also be a great parent or that their capacity as a parent is diminished because they have a mental health issue. On the other hand, it can also be argued that in some cases, a person's ability to function at their best, whether that be at parenting or any other activity can be impeded by the fact that they are suffering from a particular mental health issue.

Either way, thanks again for the insight guys, and Tim, I will utilise archive search in the future.

 

[MartyK]

When reading up Dad05 keep in mind, that while certainly the probative value will need to outweigh prejudice to a party et al, that the interpretation of the rules of evidence are at times a little broader in the Fedeal Family Courts.