Articles and Case Studies

Subpoenas for Medical Records

29 May 2018

subpoenas

Apart from appearing complex and time consuming to deal with, subpoenas can also cause concern about what doctors must do to comply, and what it means for the confidentiality of their patients’ records.

Members regularly call MDA National for advice after being served with a subpoena for the production of medical records. This article addresses some of the common questions and concerns.

Subpoenas, summonses and orders to produce (which we will call subpoenas for this article) are issued by various courts and tribunals. A number of state and federal authorities have the power to compel production of records (e.g. WorkCover, Guardianship Boards). Investigators from the Australian Health Practitioner Regulation Agency (AHPRA) can compel production under Schedule 5 of the National Law.

1. What is a ‘Subpoena to Produce’ and do I have to comply with it?

A ‘Subpoena to Produce’ is an order of the court or authority and should not be ignored.

2. How should I deal with a subpoena for the production of records?

For a subpoena to be valid:

  • it must sufficiently identify the party in possession of the documents requested under the subpoena
  • it should be stamped with a court seal (some electronic subpoenas may not be stamped)
  • it should be served within the timeframe noted on the subpoena
  • it may be accompanied by conduct money. The rules about whether conduct money is payable, and if so, how much, can vary between the different jurisdictions
  • some jurisdictions require a declaration (which will be included with the subpoena) to be signed when the documents are produced.

Read the document carefully as it will contain a lot of helpful information. Some things to look for are:

  • Parties – names of parties (e.g. plaintiff, defendant) are usually shown on the first page; one of them is likely to be your patient
  • Issuing court – top left-hand corner of page one (e.g. Family Court)
  • Issuing party – name of the person or law firm who issued the subpoena – do not send the documents direct to the issuing party, unless specified to do so in the order (e.g. Notice of Non Party Disclosure in ACT or Queensland)
  • Schedule – a description of documents to be produced. You are obliged to send only the documents requested. Observe any date ranges or other limitations on what should be sent.

If you are unsure whether the subpoena is valid, please contact MDA National for advice. 

3. Does a subpoena override my duty of confidentiality and privacy to my patient?

Patient authority to release the information is not required, and compliance with a valid subpoena is one of the exceptions to a medical practitioner’s duty of confidentiality and privacy. Although you are not obliged to do so, you may wish to inform your patient about the subpoena and your obligations to comply with it.

4. I am worried about releasing these records to the “other side”.

Keep in mind that you will be releasing the documents to the court, not to the issuing party or any of the parties to the proceedings. The court will ultimately determine access to those records by other parties. A party can object to the production of the records to the other party.

5. Can a subpoena be challenged?

It is preferable to try and reach an agreement with the issuing party to either set aside or narrow the scope of a subpoena. Confirm any agreement in writing. If this is not possible, the recipient can apply to the court to seek to have the subpoena set aside or to have its scope narrowed. Seek advice from MDA National in this situation.

There are limited grounds for challenging a subpoena which include:

  • abuse of process – the subpoena was issued for reasons other than the purpose of obtaining information relevant to the legal proceedings
  • oppression – the terms of the subpoena are so wide and insufficiently precise that compliance (including collation and production) would impose an onerous obligation on the practitioner, or where a subpoena is issued for the purpose of ‘fishing’ for information
  • public interest immunity – rarely a court may exclude a document from production even if relevant if it would be adverse to public interest to disclose it. This usually only applies to documents that may affect national security or some other extraordinary public interest.

6. I did a report for a lawyer and they are claiming Legal Professional Privilege (LPP) – does that report have to be produced?

This is a very particular category of documents, and you should obtain advice from MDA National on how to manage any disclosure obligations. Generally, you would contact the lawyer who is claiming LPP and ask them whether they maintain their claim of LPP. If so, you may be able to send a copy of the report to the court in a sealed envelope and alert the court to the claim for LPP, and also notify the lawyers for the parties.


7. What if there is information in the medical records which I believe, if released, would place my patient at risk?

Records may contain information which should not be disclosed, e.g. the address of a victim of domestic violence or any other information which might identify their whereabouts. You should obtain advice from MDA National on how best to manage this.

8. Do I have to send my original records?

Most jurisdictions make provision for you to send copies of your records. Read the schedule carefully to identify which documents and records you must produce, and pay attention to any requests for photographs or diagrams. You should also note the dates carefully, as you may not be ordered to produce all of the records. Ensure you only produce the records and documents identified in the schedule.

9. What if I don't have any documents?

Send a letter to the court or tribunal with a copy of the subpoena, advising them that you do not hold any of the medical records or documents listed in the schedule.

10. I received some money or a cheque when I was served with a subpoena. What is this?

Under the rules of various courts and tribunals, ‘conduct money’ must be provided at the time of serving the subpoena. This is to enable the issuing party to cover the recipient’s costs in complying with the subpoena. Any costs claimed must be considered reasonable, and can include administrative and printing costs – but it is not contemplated that you can recover costs at the rate of your professional fees. If the sum of money provided is inadequate, you can seek an additional payment by contacting the issuing party (on the front page of the subpoena) and letting them know your estimate of the actual costs e.g. photocopying or printing.

Compliance with a subpoena should not be withheld pending any discussion about the conduct money. If you cannot agree on the costs, you should still comply with the subpoena and produce the records within the timeframe specified. You can seek advice from MDA National about obtaining payment of reasonable costs.

11. When do I have to provide the documents?

The subpoena will indicate the date on which the records must be received by the court or tribunal. The subpoena may also indicate that documents which are posted must be received by the court or tribunal no later than two days before the return date on the subpoena. You should ensure that you comply with this requirement to avoid a potential penalty.

12. How do I send the documents?

The documents should be sent to the court in a sealed envelope with a copy of the subpoena enclosed. Unless the subpoena specifies otherwise, a photocopy of the documents should be sent. If originals are required, you should retain a copy of the documents. The documents should NOT be sent directly to the party requesting the medical records, unless this is specified in the subpoena.

You may also wish to send a cover letter with the documents – here is some suggested wording:

Dear

I write in response to the enclosed subpoena. I enclose photocopies of the requested documents pursuant to the schedule in the subpoena.

And a possible alternative paragraph:

These documents are personal medical records of a sensitive nature and I would be very grateful if the court could bear this in mind when determining access. I would also be grateful if the documents could be destroyed when no longer required by the court.

 

13. Some letters from specialists state that the letter should not be released to a third party without the permission of the author. Should these letters be included when complying with a subpoena?

If the letters are included in the documents specified in the schedule of the subpoena, they should be sent to the court. The permission of the specialist is not required in these circumstances.

14. The subpoena has been addressed to me. I am a contractor and do not own and/or have care and control of the medical records. What should I do?

Generally, a subpoena should be addressed to the entity which owns the records. If that is not you, then the issuing party should be notified and they should issue a new subpoena to the correct entity.


Summary points

  • Subpoenas to produce documents are important legal documents which should not be ignored.
  • Read the subpoena carefully to ensure you understand the scope of the request and the date of compliance.
  • Review the medical records before submitting to ensure you are sending the correct records, and that all records identified in the schedule have been included.
  • If you have any questions or concerns, please contact our Medico-legal Advisory Services team on 1800 011 255 or email advice@mdanational.com.au.

Janet Harry
Medico-legal Adviser, MDA National


See also the case study article: Responding to a Subpoena to Produce Medical Records

Medical Records and Reports, Regulation and Legislation, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Psychiatry, Radiology, Sports Medicine, Surgery, Physician, Geriatric Medicine, Cardiology, Plastic And Reconstructive Surgery, Radiation Oncology, Paediatrics, Independent Medical Assessor - IME
 

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