Go to content

Subpoena survival guide

Since 2010 there have been major changes to the law that have strengthened privacy protections of client records for victims of sexual assault. There is now a free legal service at Legal Aid NSW that provides lawyers for victims in criminal and AVO cases: the Sexual Assault Communications Privilege (SACP) Service.

This guide summarises the current law and discusses the practical implications for you and your service and how you can protect client confidentiality in NSW.

The guide has a focus on the Sexual Assault Communications Privilege but it also covers other protections relevant to subpoenas such as challenging the validity of subpoenas and tips on using the confidential professional relationship privilege. In all these questions, the law tries to balance respect for client confidentiality with the justice system’s need for openness and fairness.

Dealing with a subpoena or other formal request for client records is confronting. Many people feel that they have to release whatever documents they have been asked for. This is a common mistake.

This guide will help you know what to do. It explains how to:

  • keep good case notes and records;
  • respond to subpoenas;
  • protect your clients’ right to privacy;
  • meet your legal obligations; and
  • find out where you and your client can go for legal help.

We have dealt with the situations we think you are most likely to come across in your work, but if you are ever unsure, contact a lawyer. Places where you can get free legal advice are listed in Useful contacts.

A note on language

Throughout this guide, we use the term ‘victim’ of sexual assault, consistent with the SACP legislation. However, we acknowledge that ‘survivor’ is often a preferred term.

Who should read this guide?

This guide is for people working in a health or welfare role (or organisation) in NSW who keep confidential client records. People and services who may find this guide helpful include:

  • medical practitioners, psychologists, counsellors (for example, psychotherapists, school counsellors and financial counsellors), health practitioners, social workers, youth workers, case workers, complementary health professionals such as naturopaths, and other allied health professionals, sexual assault services, refuges; and
  • records and information management staff in government services, including hospitals, Local Health Districts in NSW, social housing providers, schools and educational institutions.