Subpoena survival guide
Keeping good records
Why keep records?
People who provide therapeutic services for clients keep file notes and records for all kinds of reasons, including:
- memory aid
- therapeutic purposes
- client progress review and case management
- continuity of service for handover and referrals
- accountability
- professional development
- report writing
- potential evidence.
Most professions have a peak body that sets record-keeping standards and many organisations and services already have policy and guidelines on record keeping. You will need to comply with any such requirements that apply in your workplace.
What to record
In general, file notes should be:
- specific
- factual
- contemporaneous (recorded at the time or immediately after contact with the client)
- accurate.
File notes should include:
- the date
- the name of the client
- your name, your designated position and your signature (or use a computerised identification system).
They should not include:
- your opinions (unless you also include the information or observations that you based them on)
- diagnoses you are not qualified to make
- quotation marks unless you are quoting directly (no paraphrasing).
TIP / Minimise use of informal abbreviations, codes and acronyms. Other people who need to look at your notes may not be able to understand them.
Supported or unsupported opinion
File notes should be specific and record direct observations relevant to the service you are providing.
File notes should only include opinions when they are backed up by observed behaviour or other information (such as diagnostic results).
They should only include diagnoses from those who are qualified to make them. If you are not appropriately qualified, you should only record behaviour and symptoms that you have observed.
The table below gives some examples of good practice.
| Supported opinion | Unsupported opinion |
|---|---|
| The client cried throughout the interview, was shaking, and had to stop several times to collect herself before answering questions: distressed. | The client was distressed. |
| Rosemary was swaying on her feet, slurring her words, smelled of alcohol. Rosemary presented as intoxicated. | Rosemary was drunk. |
| Joan reported that when she goes past the place where she was assaulted, she feels numb and sweaty and the memories of the attack come flooding back and she cannot stop them. She feels as if she is being attacked all over again. Above symptoms are common to Post-Traumatic Stress Disorder. | Joan is clearly suffering Post-Traumatic Stress Disorder. |
How long should records be stored?
NSW Health sets out requirements for the retention of patient/client records for services within the NSW public health system. Required timeframes vary from 7 to 75 years, and some records are kept indefinitely. All records relating to sexual assault must be kept for 30 years after the client reaches 18 years, or for 30 years after the completion of any legal action or after the last contact for legal access.2
Subpoenas and disclosure orders (and any related correspondence) must be kept for 7 years after legal proceedings are finalised, or after the last contact for legal access purposes. This applies to the actual orders and relevant correspondence concerning the order, not to the records (notes) that are the subject of the order.3
Services that are not part of NSW Health may have their own requirements. The NSW Health guidelines may serve as a useful benchmark for other organisations.
TIP / It is very common for victims of sexual assault, particularly child sexual assault, to delay reporting to police for many years, often decades. For example, a 2013 case in the Sydney District Court was a prosecution for offences committed against a child in 1961. In 2016 the NSW government removed time limits for commencing civil claims arising from child abuse. In time this may increase requests for older records.
The evidence given to the Royal Commission into Child Sexual Abuse in Institutional Contexts suggests that historical child sexual assault cases may be more common in future. In these cases, even very old records that don’t appear to relate to an offence can be crucial. This is because evidence about surrounding details allows a court to cross-check facts. This is very important if no formal complaint has been made and many years have passed.
2 NSW Government Record Keeping Manual, General Retention and Disposal Authorities, Public Health Services Patient/Client Records (GDA 17) 2004 at 1.8.0.
3 NSW Department of Health Information Bulletin 2004/20 (GDA 17).
Flagging sensitive records
Some client records are particularly sensitive: the records of a victim of sexual assault, and any disclosures of sexual assault, for example. Extra care needs to be taken to manage these records to protect the victim’s privacy and in case they might be used in later court action to support their story.
It is a good idea to create a customised stamp or pro forma file note to place on documents that are sensitive. This will help you respond to a subpoena, and may also help others to whom you have given client records: for example, if you are a GP who is referring one of your clients to a psychologist. If you set up this sort of system, and the other person (in our example, the psychologist) is later subpoenaed, your client records may be protected.
Also, if you send letters or emails to another professional that contain sensitive documents or information, note this in your communications to help protect the records. You could use a standard paragraph or disclaimer. For example:
‘Sensitive documents. May be subject to legal privilege’
OR
‘Warning: these notes may be privileged. Do not release without legal advice.’
