INSIGHTS: Restrictions on the use and disclosure of confidential communications between a victim of sexual assault and treating health practitioners

February 18, 2019

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Legislation in Victoria now protects the medical and counselling records of victims of sexual assault from disclosure in Court hearings.[1]

The legislation is directed at:-

‘remedying the mischief of sexual assault victims being deterred from reporting or giving full information to doctors or counsellors in the course of their treatment, because of uncertainty and fear about unwarranted access to their records being granted by the courts.’ KR v BR & Anor (2018) VSCA 159 (KR v BR). [2]

The legislative changes govern the access and use in Court of confidential communications of a patient to a registered medical practitioner or counsellor.  Counsellor is defined to mean a person who is treating a person for an emotional or psychological condition.

A ‘confidential communication’ is defined as:-

‘a communication whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor, in the course of the relationship of a medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred. [3]

The definition includes communications during treatment, prior to and following when the sexual offence has been or is alleged to have been committed; it is not limited to communications about a sexual offence.

In summary, the changes brought about by this legislation provide additional protections for the medical records of people who have been or are, victims of sexual assault or abuseFor any patient of medical practitioners or counsellors who have been or are victims of sexual assault or abuse, their medical record is protected from being accessed.

The legislation recognises the high prevalence and nature of sexual offences in society. The aim is to reassure victims of sexual assault that access to their records is limited, to prevent any further harm.

If the patient has not consented, medical practitioners and counsellors must not produce any information divulging confidential communications. It is important that medical practitioners and counsellors are aware of the changes. A medical record that contains ‘confidential communication’ cannot be released to the Court without the approval and the written notifications outlined above.

It is recommended that medical practitioners and counsellors carefully review the records that are the subject of a Subpoena to check if there is any record of confidential communications.

Records of confidential communications can be produced with the consent of the patient, or if the patient is less than 14 years of age, with the consent of any person whom the Court regards as being an appropriate person to give that consent. If, however, a medical practitioner or counsellor receives a Subpoena for the medical records of a person that may contain confidential communications and there is no clear consent to the release of the communications, then it is strongly recommended that practitioners consult their medical defence organisation, insurer or legal practitioner for advice before providing any part of the record, or report to the Court.

An insurer or their representative lawyer can advise whether the correct procedure has been followed and whether it is permissible to release the records or any part of the records to the Court. Very often, the advice to a medical practitioner or counsellor will be to write to the Court, stating objection to the release of the information that is requested, on the grounds that it may contain confidential communication. If the parties seeking production of the document seek leave, written notice must be given to the medical practitioner or counsellor from whom the records are sought. That provides the practitioner with the opportunity to make a submission or to appear in person, regarding the request.

It may be possible to argue that the restrictions are only intended to apply to cases concerning sexual offences, [4] but that is a narrow construction and it remains to be seen whether the Courts will adopt that view. It is preferable at this early stage, to adopt a broad interpretation of the application of these provisions.

Only if the requirements set out in the legislation have been met, is it possible to comply with an order to produce the medical record to the Court.

These amendments are specific to Victoria, and relate to all proceedings. Other States have provisions that limit revealing privileged communications, however they do not have the same effect and are more limited in operation. For example, New South Wales has a more narrow provision relating to ‘sexual assault communications privilege’ which applies in limited circumstances.[5] Protection of ‘counselling communications’ in Tasmania is limited to criminal proceedings. [6] Northern Territory, Western Australia and Queensland have a similar regime to NSW.[7] By comparison, the South Australian provisions have wider application but rely on protection by public interest immunity.[8]

[1] Division 2A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (EMP Act).

[2] KR v BR & Anor [2018] VSCA 159, Osborn and Beach JJA at [32].

[3] Section 32B(1), EMP Act.

[4] See R v Lyons [2018] VSC 256 Riordan J.

[5] NSW Part 3.10 Div 1B of the Evidence Act 1995 (NSW).

[6] Evidence Act 2001 (Tas) s127B(3)-(5).

[7] Evidence Act 1939 (NT) ss56-56G; Evidence Act 1906 (WA) ss19A-19M; Evidence (Miscellaneous Provisions)    Act 1991 (ACT) ss 54-67: Evidence Act 1977(Qld) ss14A-14P and Criminal Code Act (Qld) 1899 s 590APA.

[8] Evidence Act 1929 (SA) Pt VII Div 9.

 

This article was written by Principal, Kellie Dell’Oro, and Lawyer, Rosemary Blanden. Please contact us if you have any questions or if you would like further information.

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Disclaimer: This information is current as of February 2019. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.