By Kathy Gough
Team Leader, Claims, Avant Mutual Group Limited
It’s a busy morning at your practice and the mail arrives as usual. Your dispenser brings to you a legal-looking document. For a brief moment you think a patient is taking legal action against you, then with relief you realise it is a subpoena. It turns out the patient was involved in a motor vehicle accident and there is an allegation that they were unfit to drive. A solicitor for the other party has issued a subpoena for a copy of the patient’s notes.
A subpoena or notice of non-party disclosure is a court order requiring the production of documents. Failure to comply with a subpoena or notice of non-party disclosure may constitute contempt of court—unless the subpoena has not been validly served or there is some other irregularity with the subpoena.
A valid subpoena or notice of non-party disclosure generally overrides your duty of confidentiality. A subpoena is valid if:
• it has been properly addressed to you
• conduct money has been provided, if it is so required by the court rules
• it has been served in the required time frame. In NSW, for example, the date by which the subpoena needs to be served will be noted on the front of the subpoena.
The subpoena should be carefully read. Any irregularity such as the addressee, time for service and the need to pay conduct money will usually be apparent in the face of the subpoena or party disclosure notice.
The schedule to the subpoena outlines the documents to be produced. The schedule may require originals to be produced, or may state that copies are sufficient.
When you receive a subpoena, read the schedule carefully and ensure that documents referred to in the schedule are produced, even if they are kept in different files. ‘All notes’ means both handwritten and computerised notes.
Subpoenas commonly call for all correspondence in relation to the treatment of the patient during a stated period of time. This may include letters to and from solicitors acting for the patient, or medico-legal reports. It is for the patient through his or her solicitors to claim legal professional privilege over medico-legal reports.
You are generally entitled to reasonable expenses associated with complying with the subpoena, so if the conduct money provided is insufficient to cover your expenses, you are entitled to seek the additional amount from the solicitor who sent the subpoena. If this is the case it is advisable to seek legal advice relating to your jurisdiction.
A notice of non-party disclosure, which is used in Queensland, is a court document requiring you to produce records that are directly relevant to an issue in court proceedings.
The records are for inspection by the applicant or their solicitor at your place of business or the place of business of your solicitor within ordinary business hours or at another mutually agreed time and place. A notice of non-party disclosure is valid if:
• it has been issued by the court, signed by a clerk on behalf of the registrar of the court and has on it the court stamp or seal
• it is an original document, not a photocopy
• it has been served upon you within three months of the date of issue set out in the first paragraph on the first page of the notice.
If the notice is not valid, you should advise the applicant within 14 days why you believe the notice is not valid.
If the notice seeks documents relating to a patient who is not a party to the proceedings, the applicant is obliged to serve a copy of the notice on that patient. The patient then has seven days in which to object to disclosure in writing to both you and the applicant.
In these circumstances, you should wait seven days before responding to the notice. If the notice seeks documents of a patient who is a party to the proceedings, there is no obligation to advise them that a notice has been issued.
In responding to a notice, you should satisfy yourself that your patient’s records are relevant to the proceedings.
The first or second page of the notice should set out the allegations in the pleadings between the parties to which your patient’s records relate. Notices that do not identify specific issues but which ask for all records are probably invalid. You should seek advice in relation to objecting to or challenging such a notice.
Sometimes the pleadings will be served with the notice. If not, you should request copies.
Once satisfied that the relevant records relate to particular issues in the action, wait seven days and then provide access. Most solicitors will not want to inspect your original records and will simply request copies.
You are entitled to your reasonable costs and expenses of producing the documents. This ordinarily includes photocopying costs and possibly some administration fee or a component for professional time in reviewing the notice.
Pitfalls to avoid
• ignore a subpoena or notice of non-party disclosure
• produce only part of the relevant records; if you have any doubts in this respect, seek advice
• send the subpoenaed documents to the incorrect address; usually they should be sent to the court not the solicitor who has issued the subpoena.
You are entitled to object to producing records. The grounds for objection include matters such as:
• the expense and inconvenience in complying with the subpoena or notice, for example, the amount of documentation is huge or whether you need to exercise precise judgement on which documents have to be produced
• lack of relevance of the documents to the issues in the action
• lack of particularity of the documents
• claim of legal professional privilege; in respect to this basis you will probably need to seek legal advice
• the confidential nature of the documents
• the effect disclosure would have on any person
• objections in relation to the validity of the notice or service.
Do you need advice?
Consider if you should seek advice from or notify your professional indemnity provider. In the case described above, for example, the optometrist may be joined to the proceedings once the solicitor has reviewed the records.
Disclaimer: This article is not comprehensive and does not constitute legal advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision-making with regard to the individual circumstances. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is current only at the date initially published.
Avant provides professional indemnity insurance for members of Optometry Australia