Subpoenas and counsellors in family law
- Details
- Published Date
- Written by Michael Knopf
When do counsellor’s notes and records remain private?
This article is about what happened when the notes of a couples’ counsellor were subpoenaed to Federal Magistrates Court. The issue in dispute was whether the counsellor’s notes were able to be used in Court?
Subpoenas and their uses
Parties often ask the Family Court and Federal Magistrates Court (together “the Court”) to issue subpoenas to force the production to the Court of documents. For instance, in financial disputes, the Court might ask for Bank Statements. In children’s matters, it is not unusual to subpoena doctors for a child’s or a parent’s medical records. There is a degree of sensitivity in all of these documents, and the Court has its own rules to decide the degree to which any document can then be used as evidence.
Rudstein Kron Lawyers were recently involved in a case where a judge ruled on the admissibility of counselling records subpoenaed to the Court. In this case the records were those of a couples’ counsellor, whose notes were partly of his counselling to save the marriage.
There are good public policy reasons why people should believe that couples’ counselling is confidential.
Objections to subpoena
The counsellor in this case was a qualified psychologist and objected to the subpoena for production of his notes. However, in order to object to the subpoena, the notes had to come to Court so the Judge could assess the counsellor’s objection.
As it happened, the notes also recorded conversations with the parties outside the counselling sessions.
The counsellor’s notes also had the counsellor observing that the husband appeared to be suicidal, although the husband subsequently denied that he was suicidal.
Confidentiality and Accredited Family Counsellor or Family Dispute Resolution Practitioner
Relevantly, the counsellor was not an accredited Family Counsellor or Family Dispute Resolution Practitioner pursuant to the Family Law Act. Had he been, the confidentiality of discussions would have been more certain. People beginning proceedings about children have to get a Certificate from a Dispute Resolution Practitioner and an accredited Dispute Resolution Practitioner will probably not even send them to Court in the first place.
However, even a Dispute Resolution Practitioner is bound to disclose to Police or Department of Human Services if there is an imminent need to protect a child or there is a risk to the life or health of a person.
Use of Medicare Referrals to Counselling – pay for the counselling yourself
The referral to the counsellor in this case had been from a Doctor, pursuant to a Medicare Schedule, and Medicare is not supposed to pay for Couples Counselling. Accordingly, there was a question as to whether the counsellor’s notes were really records of a couples’ counsellor, or in fact a psychologist’s treating records. A psychologist’s notes for private counselling are not immune from subpoena.
Relevance of Subpoenaed Material to the case
The Judge then considered the relevance of the counsellor’s notes to the case. In this case, the husband had denied his psychiatric condition, and the counsellor’s notes contradicted and tested that evidence. The admissions outside counselling about the husband’s psychiatric suicide attempt were relevant to the husband’s denials, and so, were admissible.
The judge ordered that the parties could photocopy the counsellor’s notes. The counsellor’s objection was unsuccessful.
This article is intended to provide general information only and is not a substitute for legal advice. For advice specific to your situation, please contact the author.
Author:
