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Subpoena survival guide

Requests for records

Identifying the type of request

If you receive a request or demand for information, don’t panic. First, read it very carefully and identify what sort of request you have received. The different types of requests/demands are listed below:

Subpoenas

These are court-ordered demands. Subpoenas order you to:

  • produce documents; or
  • go to court to give evidence; or
  • both produce documents and go to court to give evidence.

TIP / The word ‘subpoena’ comes from the Latin phrase sub poena meaning ‘under penalty’. In other words, the order compels you to do something. If you do not comply you can be punished.

Subpoena-like documents

In some courts and tribunals a subpoena is called a summons.

A Notice to Produce and Order to Produce are similar to a subpoena if they come from courts, tribunals, commissions and other statutory authorities.

If you get a subpoena or a subpoena-like demand, go straight to the checklist under When you receive a subpoena.

Search warrants

Police can obtain and ‘execute’ (carry out) search warrants. This allows police to enter premises and look for and take certain things that may be relevant in a criminal investigation. They are not commonly used against health or community organisations.

In the unlikely event that police present you with a valid search warrant for your records or other items, you must comply. If possible, you can try to negotiate for some time to obtain legal advice or agree on an alternative. Search warrants are sometimes issued without full consideration of the consequences. You can discuss with police what is being sought, why, and the scope of the information required. You may be able to agree with the police on another option (such as partial release of information) that may better protect client confidentiality.

TIP / If the police arrive with a valid search warrant (or an ‘occupier’s notice’), you need to comply. If possible, talk to the most senior police officer present, who has an overseeing role and ask if the search can be delayed so you can contact your client and a lawyer. Emphasise that you will not hinder police, you are willing to assist, and that you are both aiming to act in the best interests of the client and a proper investigation.

If the police only say they intend to issue a search warrant, you are not required to give them anything. It is, however, still a good idea to try to negotiate a compromise. Where possible, talk to a lawyer and your client before you respond.

Letters from lawyers

Lawyers can send requests for information. A letter, on its own, is not a court order, and you are not required to do anything. What would your (former) client like you to do? Most lawyers will enclose a signed client authority. If the lawyer does not enclose an authority, it is good practice to obtain written consent from your client before releasing the documents.

Letter from your client’s lawyer

Check with your client that they understand the request from their lawyer. If they do, in most cases it is OK to send the material. If you are unsure, or if you think you may have conflicting confidentiality obligations, talk to a lawyer before you send anything.

If the client didn’t authorise the request, try to clarify the situation with their lawyer.

Letter from someone else’s lawyer

Ask your client if they have authorised the request. If they haven’t, don’t send anything. If they have, but you still have concerns about releasing the material, talk to a lawyer. Remember that disclosing client records without a subpoena or without the informed consent of your client may breach your professional and legal obligations.

Requests for statements or affidavits

Statements and affidavits are ways to bring you into a case as a witness. However, your evidence may not be used, and in many cases you will not need to go to court.

In some cases you may feel that providing a statement or affidavit will help your client, and in some cases your client may ask you to do so. The decision about whether or not to be involved in your client’s case in this way is a complex one. Whatever you decide, only disclose what is needed. Do not attach or include originals or copies of any of your records.

If the Police ask you for a statement, and you do not wish to make a statement, for whatever reason, you are not required to. Usually, your only legal obligation is to provide your name and address to the Police. If you are in this situation, it’s a good idea to seek legal advice.

Requests for reports

If you prepare a report you may be subpoenaed at a later stage to give evidence in court and/or to produce your records to the court. The court or parties in a legal proceeding commonly ask to see the primary material (your notes) forming the basis for the report. This is usually to check for any inconsistencies, and/or any material that has been missed, and to support or discredit what you have written. You may also be cross-examined about your report.

For information on where to get legal advice, see Useful contacts.

Informal requests

These can come from anywhere, including from clients who want a copy of their file. You are not required to do anything (unless your records are covered by the GIPA or HRIA legislation), however as a general rule you should be guided by your client’s wishes.

TIP / If your client is helping the Police with an investigation, they may feel that they ought to release all records the Police ask for (to support the prosecution case). Make sure your client knows that there may be other options, and that the information asked for may not help the prosecution case in the long run. Encourage them to talk to a lawyer so that they can make an informed decision.

Story iconCase study: Jamal

Jamal is a counsellor at a private clinic and has been treating David for 3 years. David was sexually assaulted by his uncle some years ago. Jamal is visited at work by a police detective investigating the sexual assault. The detective tells Jamal that his notes are crucial evidence because David made his first disclosure about the sexual assault to Jamal. This was several years before he made his formal police statement. The detective says he needs a full copy of David’s very thick file and will apply for a search warrant if Jamal doesn’t hand it over immediately. The detective shows him the application for a search warrant. But since the document is only an application, and not an actual warrant, Jamal decides to ask for some time to discuss the issue with David, and get some help from a lawyer. Over the next few days, Jamal negotiates with the detective to delay release of any records until the charges are at court, when David can be represented by a lawyer. Later, with the help of a specialist lawyer from Legal Aid NSW, David consents to a very limited release of material from the file. David only agrees to the release of 3 pages of redacted (blacked out) notes, which detail his first sexual assault disclosure to Jamal. All other information about David’s emotions and experiences remain private.

When you receive a subpoena

Here is a list of things you need to check when you are served with a subpoena:

  1. What type of subpoena is it?
  2. Who is the subpoena addressed to?
  3. Who is asking for the material or attendance at court?
  4. What is the subpoena asking for?
  5. When do you have to provide the documents or go to court?
  6. What are you being asked to produce?
  7. Do you have the information you are being asked to produce?
  8. Does the subpoena comply with the formalities?
  9. Do you need to contact your client?
  10. Could the information be ‘privileged’? Does the Sexual Assault Communications Privilege (SACP) apply?

Read on for more detail.

TIP / Never ignore a subpoena. If you fail to comply with a valid subpoena (by doing exactly what it asks or by objecting) you can be charged with contempt of court. This is a criminal charge, and can result in a gaol sentence. However, there are rules that let you object to a subpoena and often there is room to negotiate.

1 What type of subpoena is it?

The subpoena will be to:

  • produce documents; and/or
  • attend court to give evidence;

2 Who is the subpoena addressed to?

The request will be addressed to an individual, using their name, or to a specific position in a service, such as ‘The Director’. Often subpoenas or requests for information in legal proceedings are addressed to ‘The Proper Officer’ and this is usually ok.

If the subpoena is addressed to the wrong person, it could lead to the subpoena being set aside. In practice, however, it is unlikely this will happen Usually the error will just be corrected.

Take particular care if the subpoena is addressed to an organisation or service that has many parts. For example, the records held by the Community Mental Health Team are far fewer than the entire Local Health District holds. Only return records from the recipient of the subpoena.

3 Who is asking for the material or attendance at court?

Subpoenas can come from many sources. It can be difficult to clearly identify the source of the request, but it is important to do so. You need to work out who has sent the subpoena, as that is the person you will need to contact if you want to discuss their request.

In criminal proceedings, for example, the subpoena can come from the prosecution (Police, Office of the Director of Public Prosecutions) or the defence (defence lawyer – or lawyers in the case of multiple accuseds – or the accused if self-represented).

In family law proceedings the subpoena is likely to come from a party to the proceedings. It could come from one of the parties, or from a lawyer for a party, or from an Independent Children’s Lawyer (ICL).

4 What is the subpoena asking for?

If the subpoena is asking for the production of documents, it should include a ‘schedule’. It should be clear from the schedule exactly which documents are being requested: for example, there could be a clear date range, or a category of documents, such as ‘all clinical notes’.

If it is a subpoena to attend court to give evidence (with or without producing documents as well), the date and time you need to be at court will be specified. You must attend until you are excused by the Judge or Magistrate.

If you have received a valid subpoena you have to:

  • comply by producing the documents and/or attending court as required; or
  • raise a formal objection to the subpoena.

TIP / A subpoena is a court order that will require you to produce documents to court or attend court. Although you can often negotiate with the person who sent you the subpoena, NEVER SEND DOCUMENTS TO ANYONE EXCEPT THE COURT. You are accountable to the court, not to anyone else.

5 When do you have to provide the documents or go to court?

The subpoena will tell you the date by which the documents must be produced to the court. If you have questions about this, talk to the person who sent the subpoena or your own lawyer.

There are rules in each jurisdiction about how much time a person must be given to respond to a subpoena. This is often written on the subpoena itself, and you can also check the relevant court’s rules.

Can you comply with the subpoena in the time provided?

If the subpoena is served in time but you cannot comply in that timeframe, contact the person who sent you the subpoena and try to negotiate some extra time. If that is unsuccessful or impossible, you can raise an objection with the court. You may be able to claim that the subpoena is ‘oppressive’. It is best to talk to a lawyer in this situation.

Are you available on the day?

Being ‘available’ for court is not the same as whether or not it is ‘convenient’ for you to attend. Courts will only accept very serious circumstances as reasons for non-attendance, such as a medical emergency.

If the subpoena says you have to attend court (with or without documents), and that will be difficult for you, contact the person who sent the subpoena or the court to see if the date can be changed. If necessary, talk to a lawyer about your options.

6 What are you being asked to produce?

If you are being asked to produce documents, read the schedule carefully. The schedule will specify what documents are ‘caught by the subpoena’. You should only ever provide what it asks for. The table below lists some examples of common (but serious) mistakes.

Reading the Schedule – Common Mistakes
The schedule asks for … But instead you provide …
John Smith’s file (DOB 16/4/42) John Smith’s file (DOB 18/10/68)
All school attendance records The entire student file, including academic results, school reports and counselling notes
All case notes from 4 April 2006 to 20 June 2007 All case notes on the client file from 1986 to 2012
All files held by the Drug & Alcohol Service

All files held by Community Health including Mental Health Team and Child & Baby Early Childhood Nursing notes

If the schedule is unclear, confusing or too difficult to comply with, or you need to use your discretion to work out what is required, the subpoena may be oppressive. If you’re not sure about any of this, talk to a lawyer.

7 Do you have the information you are being asked to produce?

If you don’t have the material, notify the court that you do not have anything to produce. You must be honest. If you don’t have the material because it’s been lost or destroyed, for example, say so in writing.

8 Does the subpoena comply with the formalities?

The rules about subpoenas vary from one court to another.

There are time limits for subpoenas, so check with the Registry of the issuing Court to see if the subpoena complies with its required time limits. The courts have the power to reduce the time limits for compliance with subpoenas if there is some urgency. This is called ‘short service’ (see Objecting to a subpoena).

TIP / Sometimes subpoenas have very short timeframes – some even ask for material on the next day! These are called ‘short service’ subpoenas. Make sure you carefully check the response date and whether the court has allowed such a tight deadline.

9 Do you need to contact your client?

Always contact, or attempt to contact, your client (or former client) when you receive a subpoena for their records. Tell your client about the subpoena and ask them what they want you to do. Let your client know that you will do your best to act according to their wishes but sometimes your legal or professional obligations may prevent you from doing so.

Tell your client that they can get legal help about their rights and whether there are any special rules that protect their privacy, such as the Sexual Assault Communications Privilege (SACP). For detailed information on this, go to Sexual assault communications privilege.

Who is your client?

Sometimes it can be unclear whose confidentiality will be breached, or whose consent is required, before notes are produced or evidence is given to the court.

In family counselling and child counselling, for example, it may not be easy to distinguish your client from the other people participating in the counselling process. Take time to clarify whose confidentiality may be compromised by disclosure, and do your best to consult each of these people individually.

What if the client asks you for advice?

Some clients may ask you whether or not they should consent to their records being produced. They may place undue weight on any advice you give because of the relationship you have. If you are not a lawyer with experience in this area, you should avoid telling the client whether or not to consent.

You can, however, talk to your client about the general impacts of disclosure of records (see Reasons for protecting victim records). You could also refer the client to their current therapist or an appropriate counselling service.

Tell your client that they should talk to a lawyer about their options, and offer them appropriate referrals. (See Useful contacts.)

What if you can’t find your client?

Make reasonable attempts to contact your client. Write to or telephone your client at their last known address or contacts number, or try an electoral roll search or telephone directory or internet search.

In criminal proceedings, if your client is a complainant or a witness and you cannot find them, contact the police or the ODPP for help.

Where a solicitor is asking for your records, ask the solicitor if they have contact details for the client, even if they don’t act for the client. They may not be able to give you those details, but they may be willing to contact the client or their lawyer and ask the client to get in touch with you.

TIP / If you cannot contact your client, it is generally advisable to raise an objection to the subpoena.

Who can consent to the disclosure of confidential information?

Only the client can give you permission to disclose their records or to give evidence about the treatment or counselling in court proceedings. Make sure your client has had an opportunity to get legal advice first.

There are times when the court will require you to disclose information despite your client not giving consent.

If you intend to comply with a subpoena but your client wants to maintain the confidentiality of their records, talk to a lawyer.

If your client consents to producing their records to the court, get the specific consent in writing.

TIP / If a client allows you to disclose confidential records they may be giving up (‘waiving’) some of their legal rights to privacy. Encourage your client to get independent legal advice before consenting to release of their records. Remember: all parties to a court case are likely to see documents that are released without objection.

Seeking consent where there are multiple clients

Where case notes relate to multiple people, it may not be clear whose consent to disclosure is required. For example, there could be a number of clients, adults and children, involved in a counselling session. Even where it is clear that you have one client, a child for example, an adult may have attended as a support person and provided confidential information.

Try to get consent from anyone who provided confidential information to your service, including children.

Seeking consent from vulnerable clients

Issues around the waiving of confidentiality become complicated where a client is too young, or lacks capacity because of cognitive impairment, to give proper consent.

In these situations you should talk to a lawyer. There are specialist legal services for vulnerable groups, such as the Intellectual Disability Rights Service and the Older Persons Legal Service (see Useful contacts).

10 Could the information be ‘privileged’, and would the Sexual Assault Communications Privilege (SACP) apply?

You need to consider this every time you receive a subpoena. The Sexual Assault Communications Privilege (SACP) is a very broad privacy protection and can apply in any criminal or AVO proceedings whenever the records requested concern someone who has ever been a victim of sexual assault. SACP will apply even if the material has no connection to any alleged sexual assault (see Sexual assault communications privilege for more information). If the SACP does not apply then another legal privilege could protect the confidentiality of the client’s records.

TIP / You need to make sure you know about and understand the Sexual Assault Communications Privilege: it was strengthened in 2010.

Your organisation’s policies

Here are some policies your organisation should have:

  • What to do if you are served with a subpoena. Have a subpoena policy and make sure all staff know about it. Include information about handling subpoenas. You can use this Guide as a reference.
  • Keep separate records for clients who attend together. For example, if your client is a child and you also take notes about the mother, these should be put in a separate client file.
  • Flag clinical, therapeutic or case notes with a warning system (particularly if the client has been a victim of sexual assault). The warning should say something like: Warning: these notes are confidential and may be privileged. Do not release to other parties without proper client consent and legal advice.
  • Nominate a senior worker who can authorise release of client records. Make sure they get training and have a backup plan in place if the nominated person is not available.

Health NSW Subpoena Policy is available on line at www.health.nsw.gov.au, however the policy predates the 2010 SACP reforms and is currently under review.