Served with a subpoena? What GPs need to know

Neelima Choahan

19/07/2018 3:05:22 PM

For the third of a series on legal matters in general practice, newsGP spoke with two experts about what a GP's obligations are when complying with subpoenas.

What obligations do GPs have when faced with a subpoena?
What obligations do GPs have when faced with a subpoena?

Subpoenas for medical records can appear complicated, and also raise questions about patient confidentiality. We speak to two experts about what GPs should do if they are asked to produce documents under subpoena.
Stuart Le Grand, Le Grand Margalit Lawyers
 What is a subpoena? 
‘A subpoena is a court order requiring the attendance of a person to give evidence or to produce a document, or both,’ Mr Le Grand told newsGP.
‘A subpoena is one of the most important processes of the court because anyone who has seen the facts or knows the facts is an important factor to assist the court in reaching the truth.’
He said, in practice, subpoenas are often used by the parties to collect information about the person who is subject to the court proceedings.

‘It is to see what has transpired between the health practitioner and the relevant person,’ Mr Le Grand said.
‘Things commonly requested in a subpoena are patient notes from clinical records, examination findings, radiology, reports, referrals.’
Mr Le Grand said the order takes effect when the subpoena is sealed with the court’s stamp.
‘Commonly, subpoenas are required to be served personally on the addressee, however if a subpoena has been served by other means, such as electronically, the addressee should still comply,’ Mr Le Grand said.
‘Generally speaking, a subpoena must be served not earlier than five days before the day specified in the subpoena for compliance.’
Types of subpoenas 
‘There are three main types of subpoenas,’ Mr Le Grand said.
‘The first is a subpoena to give evidence, the second is a subpoena for production of documents, for example, a GP is asked to produce their clinical file of the patient.  And the third type is a subpoena for production and to give evidence.’
Mr Le Grand said GPs are only required to present at court when under a subpoena to give evidence.
‘Generally you will only be issued a subpoena to give evidence if the case is proceeding to trial,’ he said.
‘But more often than not, parties just trying to obtain relevant information pre-trial will issue a subpoena for production. 
Conduct money 
‘If a GP receives a subpoena it is a requirement that they be provided with conduct money which is the reasonable expenses of the person named in complying with the subpoenas which includes, for example, travelling costs, sustenance and where appropriate, accommodation,’ Mr Le Grand said.
Grounds for objection 
A court of its own motion can have the subpoena set aside, but also a party or a person having a sufficient interest can have the subpoena set aside.

‘A GP could apply for a subpoena to be set aside if a compliance of which will be considered oppressive … for example, if the GP is overseas presenting at a conference, the GP may claim it would be oppressive to require attendance. Ultimately it is a matter for the court,’ Mr Le Grand said.
A GP can also raise an objection to the file being inspected by the parties.
‘If a GP objects to a document being inspected by the parties, they should notify the court in writing of the objection and the ground of the objection,’ Mr Le Grand said. 

‘If an objection has been received by the court … the court will then set a hearing for that objection to be heard and determined.’
He said at the hearing the judge will hear from all and then make an order whether the document can be inspected, in part, whole, or not at all.
Original or not?  
Unless a subpoena specifically requires an original document, a GP may produce a copy of the documents, and in many jurisdiction this now includes electronic documents, ie, PDFs or CD-ROMs,’ he said.
Who should the documents be sent to?
Mr Le Grand said complying with the subpoena doesn’t mean sending the documents to the party who subpoenaed it.

‘It requires the document to be sent to the court,’ he said.

‘And no person may inspect the document unless the court has granted leave [permission]’.
Mr Le Grand said the basic requirements of a subpoena are:

  •          it shall not be addressed to more than one addressee
  •          it shall identify the addressee by name or by description of office or position
  •          it shall identify the document or thing to be produced
  •          it shall specify the date, time and place of production or to give evidence.
Failing to comply
‘Failing to comply without lawful excuse is a contempt of court, and the courts can issue warrants to apprehend a person named in the subpoena to bring them before the court,’ Mr Le Grand said.
Dr Sara Bird, Manager, Medico-legal and Advisory Services, MDA National

Dr Bird told newsGP there are five key messages for GPs to keep in mind when they or their practice gets a subpoena for medical records.
‘The subpoena is a legal document and it does override the GPs duty of confidentiality to the patient,’ Dr Bird said.
‘So the GP and the practice do not need the patient’s permission to send the medical records to the court, and indeed it is a legal document that obliges them to send the medical records to the court.’
Dr Bird said sometimes GPs understandably are concerned about providing a patient’s medical record to a third party.
‘In those cases, they can certainly inform the patient that their medical records are being subpoenaed, however, they are not obliged to inform the patient,’ she said.
‘But it is important that if they are informing the patient about the subpoena that the conversation doesn’t go along the lines of, “Do you want me to send the records to the court?” The conversation needs to be, “I have received a subpoena, and I am obliged to send these medical records to the court”.’
Challenging a subpoena 
‘From a legal point-of-view, there are very limited grounds for challenging a subpoena. In my experience as a medico-legal adviser, it is actually very uncommon that there is a legal basis upon which a GP or general practice can object to the production of medical records,’ Dr Bird said.

‘There may be grounds that a patient has upon which to object to a subpoena. This is one reason that you may want to inform the patient, so they can inform their solicitors so that they can make an objection. 

‘But if you actually look at the legal grounds upon which you can object to producing or sending the medical records to court, they are very limited, such as abuse of process, oppression or public interest immunity.’

Dr Bird said GPs can seek advice from their medical defence organisation if they wanted to object to the subpoena.

She said they could also include a covering letter, informing the Registrar of the court, who receives the documents, that the records are highly sensitive, and the GP’s concerns about providing access, such as the potential impact on their patient’s mental health.

The GP then can ask the court to use their discretion for providing access to the medical records.

‘That issue arises not infrequently in Family Court matters, where the ex-partner has subpoenaed the medical records of a patient,’ Dr Bird said.

‘And it often occurs where there are mental health issues and [other] highly sensitive information in the records.’

Deciphering the subpoena
‘It is important to read the subpoena carefully,’ Dr Bird said.
‘There is a lot of legalese, but all the information is there.’
She said there are three key things to look for in the subpoena, which may be several pages long:
  •          Where the records should be sent, that is, which court they should be sent to
  •          The date by which the records need to be received by the court
  •          Review the schedule of the subpoena – the schedule provides the description of the documents which need to be produced/sent to court
Who owns the records?
The subpoena should be addressed to the correct party who owns the medical records, and generally, that will be the actual general practice itself.

‘If it is incorrectly addressed to the GP, then the GP should write back to the requesting party and also to the court and say, “I do not hold or own these medical records. The subpoena should be addressed to [include the correct party]”,’ Dr Bird said.

What if you don’t have the rejected medical records?
‘Sometimes GPs or practices receive a subpoena for medical records where they have no record of ever seeing the patient,’ she said. 

‘In that case, you still need to comply with the subpoena by writing to the court, attaching a copy of the subpoena and saying, “Our practice doesn’t hold any records in relation to [include the person’s name]”.’

Notice of non-party disclosure
Dr Bird said although a subpoena requires the records to be produced to the court, not the requesting solicitor, there is one type of subpoena called the Notice of Non-Party Disclosure, which requires the documents to be sent to the requesting party.

Such subpoenas, however, only exist in the Australian Capital Territory and Queensland.

medico-legal subpoenas

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