Australia’s peak psychiatry body has sounded a warning about the undermining of patient confidentiality as the result of the growing use of subpoenas to access patients’ private clinical records in court.
The Royal Australian and New Zealand College of Psychiatrists (RANZCP) said psychiatrist-patient confidentiality was increasingly threatened by the use of subpoenas to secure sensitive clinical records.
RANZCP Board member, Dr Peter Jenkins said subpoenas are being used in civil as well as criminal cases, including defendants seeking access to the psychiatric records of their alleged victims.
“Subpoenas are designed to serve the public by bringing all the relevant evidence before a court, but when they are misused as an abuse of the legal process they threaten the public interest and damage people’s lives,” Dr Jenkins said.
“Patients can be exposed to a range of harms including feelings of shame, stigma and helplessness when sensitive clinical records are disclosed without their consent.
“This can result in patients being re-traumatised and in vulnerable patients’ restricting the sharing of information that psychiatrists need to ensure their proper diagnosis and treatment.
“The actual or threatened use of clinical record subpoenas can also unfairly influence legal proceedings, for example when notes are taken out of context to attack the credibility and character of individuals during cross-examination.
“In family court cases, indiscriminate access to psychiatric records may damage relationships between children and their separating parents and extended family members that would not be in the best interests of helping children to survive non-amiable divorces.”
The subpoenas psychiatrist-patient confidentiality issue will be raised at the Royal Australian and New Zealand College of Psychiatrists (RANZCP) Annual Congress from 30 April to 4 May at the Adelaide Convention Centre.
RANZCP Fellow, Dr Gary Galambos said there was widespread concern among the profession about the issue and changes to the legal system were urgently needed.
“Across Australia, major differences exist in the defenses available to protect the confidentiality of clinical records against subpoenas. Compared to New Zealand and other common law countries, the defenses in Australia are weak, inconsistent and difficult to use,” Dr Galambos said.
“All Australian jurisdictions need to have the same discretion to protect confidential records and ensure that judges and lawyers are more aware of the harmful impacts of forcibly disclosing clinical records.
“Other groups have expressed support for overhauling the current system, including various law reform commissions and the Australian Medical Association and the RANZCP will continue our advocacy on the issue to protect patients.”
“One of the concerns around the use of subpoenas is that knowing that their records may be used in court can put people off from both seeking mental health care, or dropping out of it, with potentially tragic consequences,” RANZCP President, Professor Malcolm Hopwood said.
Read Position Statement 89 'Patient-Psychiatrist confidentiality: the issue of subpoenas'
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The Royal Australian and New Zealand College of Psychiatrists is a membership organisation that prepares medical specialists in the field of psychiatry, supports and enhances clinical practice, advocates for people affected by mental illness and advises governments on mental health care. For information about our work, our members or our history, visit www.ranzcp.org.