The APS National Office Professional Advisory Service receives a large number of enquiries from psychologists unsure about how to respond to a subpoena, indicating that this is a complex area that causes anxiety and uncertainty. Psychologists frequently lack familiarity with the legal processes and obligations associated with subpoenas, and how these intersect with professional obligations to maintain client confidentiality. Resources have been developed over the last few years to assist practitioners in this area, which have been consolidated into the document: when-the-subpoena-comes.pdf
In this article the APS in-house legal counsel, Jeanette Jifkins, revisits the subject of subpoenas to respond to frequently asked questions from members.
What is the difference between a subpoena and a summons?
Sometimes the difference is only in the terminology and not the effect. It does depend on the court and the applicable court rules. Sometimes a summons is issued to involve you as a party to a proceeding. Sometimes a summons is the same as a subpoena, requiring you to attend the court or provide documents. Either way, it is a direction from the court and you need to read it carefully and seek advice if there is anything in it that you do not understand. Many courts require explanatory notes to be included as part of the subpoena document.
How do I know I have received a subpoena? Is a solicitor’s letter the same as a subpoena?
A subpoena has a particular form approved by the court of issue, is stamped and dated by the court, will have specific notices attached and an ‘expiry’ date before which it must be provided to you. If the subpoena compels you to attend the court, it must also be accompanied by payment of a reasonable fee to cover your attendance. The website of the court issuing the subpoena will often include general information about subpoenas and sometimes include a copy of what it should look like.
A solicitor’s letter is not the same as a subpoena. There are many ways solicitors seek information for the purpose of legal proceedings. A solicitor may ask for documents and provide a release from the client, or may ask for documents relating to a matter that your client is involved in. Some solicitors’ letters may quote legislation and state that you are compelled to provide the information. There are some laws, particularly regarding the administration of injury claims, that do require a psychologist to produce documents in response to a letter. You need to be clear about what the legislation compels you to do before responding. If you are not clear why the solicitor is asking, and whether or not there is legislation compelling you to produce information, then ask the solicitor to clarify this.
I've been issued with a subpoena and ordered to produce documents. Do I need to inform my client about this?
It is always a good idea to inform your client about any request for production of his or her information. You should be clear that you are notifying your client by way of courtesy, and not for the purpose of seeking comment or permission. A person who is affected by the production of information pursuant to a subpoena also has a right to lodge an objection against the production of his or her information to the court. If you think your client may have concerns about production you may provide copy of the subpoena and suggest he or she seeks legal advice.
Am I required to release a client file in total if it is against my client's wishes?
Firstly, be sure that you are being requested to produce your ‘file’ rather than specific information. Many psychologists do not give sufficient thought to what is actually being requested. A subpoena or other request may be limited to specific information and if that is the case, that is all you should be providing.
Secondly, if you are legally compelled to produce documents or information, your client’s wishes cannot over-ride your legal obligations. When required to produce documents or information under legislation or as a result of a court order, a psychologist will also be protected by the relevant law from prosecution by the client or disciplinary body.
How do I go about making a request to the court to withhold client information from my file if I believe that it is not relevant to the case?
If you believe that information or documents should not be released then you need to object to their production and it is then up to the court to review the documents before they may be released. You should put the documents that you object to producing in a sealed envelope with a covering letter addressed to the Prothonotary/Registrar of the Court, entitled “Objection to Production”. The Registrar should then contact you with a date to attend the court and make your objection, which would normally be the date the documents are to be provided to to the court.
Each court has slightly different requirements for making an objection and the necessary information should be in a notice attached to a subpoena or available through the court website. Your objection will have more credibility it you limit the objection to specific material rather than the whole of what you have been asked to produce. Resources to assist in this process are available via the APS website from the link in the introduction to this article. A further useful resource is available through the Federal Magistrates Court of Australia and, although only applicable to that court, provides a useful template for writing an objection to production.
Is there any general guidance about what I should withhold from the file if I am subpoenaed?
Again, careful consideration should be given to the specific request set out in the subpoena. If the request in the subpoena is too broad, making compliance with the terms too onerous, you can object to producing documents. Usually a request will be limited in scope to a specific date range and specific types of documents or information. If you have documents or information that do not fall within the scope of the request, they should not be produced. You are also not required to create a document in response to a subpoena, however, if you hold information electronically, you will be required to produce that, either in printed form or on CD. Many courts now prefer to receive copies of documents on CD as that reduces their storage issues.
I have been subpoenaed to provide a client file as part of a relationship dispute. I believe some of the information collected as part of treatment is not relevant to the court case. Can I withhold that information and do I need to advise the court that I am withholding part of the file?
Interesting question. This may sound reasonable from the perspective of a psychologist, but from the perspective of a lawyer it seems like the height of arrogance! A subpoena is an order from the court. If you receive an order from the court, you do not tell the court what parts of it you will or will not comply with. If you try, you could be charged with contempt of court.
If, after carefully considering the scope of the request made in the subpoena, you feel that there are documents or information that should not be disclosed, then you make an objection to the production in the way referred to above. If you attempt to withhold information from the court you may be subject to penalty.
I received a subpoena from the Family Court for copies of a child’s file. Both parents separately attended sessions relating to the child and the content of the separate sessions has not been shared with the other parent as consent was not given to do so. Do I need to provide notes on the sessions I had with the parents or only those notes taken while working with the child?
The answer depends upon the specific request set out in the subpoena. If you determine that the request means that notes from sessions with both parents should be included and this raises concerns about the impact of disclosure upon the relationships between the parties, then the notes from sessions with either parent can be sealed in separate envelopes. An objection addressed to the Registrar of the court should state your concerns and ask to limit inspection of those documents to the court, or the legal advisors, or only the party who was involved in the session.
The Family Court publishes a brochure about compliance with subpoenas and making objections to production.
I have received a subpoena to produce client records and to appear at a tribunal hearing. I am prepared to provide notes but am I also obliged to appear at the hearing?
There are three types of subpoenas. The first is to appear in court, the second is to appear in court and produce documents, and the third is to produce documents. If you have been asked to attend as well, there is probably a reason why. If you do not comply with the subpoena, you may be subject to penalty.
I have been subpoenaed to appear in court. Can I refuse to answer questions that I think will disadvantage my client?
When you are sworn in as a witness in a court you promise to tell the truth. The truth should not be influenced by what you think may be in favour of, or disadvantage to, your client. If you refuse to answer questions in court the presiding judge may direct you to answer the question. If you refuse, you could be charged with contempt of court. Also keep in mind that your credibility as a witness may be called into question if you are evasive in answering questions.
It is going to take me several hours to respond to the subpoena. How can I be sure that I will be paid for my time?
There are different rules regarding the payment of expenses in different courts. Generally speaking, if you will incur substantial loss or expense in properly complying with the subpoena, you may make a written application to the Court for an order that the party who has issued the subpoena pay you an amount to cover that loss or expense. You will need to contact the court issuing the subpoena to find out what form of application you need to use, and provide proof of the loss or expenses incurred, usually in the form of an affidavit. To lodge an application you must, before complying with the subpoena, give notice to the issuing party that you will suffer substantial loss or expense in properly complying with the subpoena and include an estimate of the loss or expense. You may choose to refer to the APS Schedule of Recommended Fees in outlining your expenses.
I have been subpoenaed to appear in court. When I asked about payment I was told that I am a witness as opposed to providing expert opinion, and hence no payment is provided. Is this correct?
‘Conduct money’, meaning sufficient money to cover the cost of your travel from your home to the court via public transport, must be paid at the time the subpoena is provided to you, otherwise the subpoena is not valid and you do not have to attend.
There are different rules regarding the payment of witness expenses in different courts. Most court websites have a section explaining what expenses a witness can claim. There are times when the lawyer who issues the subpoena may not be clear on what your full entitlements are as a lay witness instead of an expert. Any person who is not a party to a proceeding and is subpoenaed to attend is entitled to recover some witness expenses. Even a person who is a director of a company that is a party to a proceeding and in court everyday can sometimes claim expenses associated with attending the court.
I have received a subpoena for files older than seven years that have been destroyed as per the APS Code. What can I do about this?
A subpoena can only compel a person to produce documents that are in his or her “possession, custody or control”. Documents that have been destroyed in accordance with an established document retention policy are no longer within a person’s “possession, custody or control”. To avoid any repercussions for failing to respond to a subpoena, a psychologist can write to the court advising that documents were destroyed and when, in accordance with the established document retention policy of the business. Please note however, that even in line with a document retention policy, a psychologist should not destroy documents where the psychologist knows that those documents could be relevant to an existing or contemplated court proceeding.
The information provided in this article is general and does not replace the need to obtain independent legal advice in specific situations. Please note that the APS is unable to provide legal advice to psychologists, nor is the in-house legal counsel available to answer specific queries. Enquiries regarding professional matters should be directed to the APS Professional Advisory Service by telephoning or emailing the APS National Office.