AU: Psychiatric patients' records being aired in court

Harriet Alexander reports:

Psychiatrists are handing their patients’ confidential records to the courts amid threats of jail, under a flourishing practice by solicitors of issuing “dirt digging” subpoenas.

Some patients have been powerless to prevent details about their past sexual abuse or childhood trauma being aired in court, even in matters where they are not a party to the legal proceedings, a paper published in Australasian Psychiatry says.

The authors claim that solicitors are seeking unfettered access to patient records in civil and criminal cases, regardless of their relevance.

Read more on Sydney Morning Herald.

The article referred to is:

John Levy, Gary Galambos, and Yvonne Skarbek. The erosion of psychiatrist-patient confidentiality by subpoenas. Australas Psychiatry August 2014, 22: 332-336.

Here’s the abstract:

Objectives: We explore the reasons for the prolific use of subpoenas to gain access to psychiatric records in Australia. We examine the applicable legal principles and practices at the New South Wales (NSW) and Commonwealth levels, aiming to develop recommendations for Australian Governments to curb the inappropriate and harmful use of subpoenas.

Conclusion: Unfettered legal access to psychiatric records is inconsistent with professional ethical guidelines and risks undermining the provision of quality psychiatric care to the community. The existing legal provisions are failing to protect psychiatrist-patient confidentiality. In NSW, the onus is placed on the psychiatrist and/or patient to make a complicated application to the court, to direct that a subpoena be set aside on the grounds of “Professional Confidential Relationship Privilege.” An absence of Commonwealth legislation to protect psychiatrist-patient confidentiality is used by some litigants in family law proceedings to disadvantage patients by stigmatising them, because they have consulted psychiatrists. We recommend that uniform legislation be implemented, giving effect to a primary rule of privilege with exceptions.

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