It is important to understand your legal obligations and responsibilities when responding to a subpoena or an order to produce documents and how this interacts with your patients’ right to privacy.
What is a subpoena or ‘order to produce’?
A subpoena is an order from a court or tribunal that requires the recipient to either produce documents to the court or tribunal or attend at a hearing to give evidence in person.
Importantly, when you are asked to provide documents or evidence under subpoena, this overrides your obligation to keep your patients’ personal information (including their sensitive/health information) private and confidential.
What does a subpoena or ‘order to produce’ look like?
It should contain the seal of the court or tribunal and a ‘filed’ stamp on the cover page. If there is any doubt as to the authenticity of a subpoena, you should contact the relevant court or tribunal and ask them to confirm that the subpoena was filed and issued.
A subpoena must specify an addressee. It will identify a person by name, or by description of the office or person. If the subpoena has been issued to the incorrect person and you are not the named person on the subpoena, you should contact the court or tribunal in writing as soon as possible to seek more information about the intended recipient.
A subpoena to produce will have the date of production listed on the cover page. It is important to take note of this date. If you are unable to produce the documents in the specified timeframe you can notify the issuing party and request that they issue a notice altering the timeframe for production. Alternatively, you can write to registrar of the court or tribunal requesting that the timeframe to comply with the subpoena be extended.
What documents do I have to produce?
A subpoena to produce will specify the schedule of documents that the recipient is required to produce. It is important to read this section carefully to understand the exact scope of the request. Be careful to only provide the information that is requested in the subpoena.
Refer to the wording of the subpoena to confirm whether you are required to produce:
The subpoena must be written in a way that ensures the recipient knows exactly what is required to be produced. The subpoena must request documents or other information that are known to exist. It cannot require the recipient to create a document in order to comply with the subpoena.
What if I don’t have the information requested in the subpoena?
You only need to produce documents that are within your (or your organisation’s) possession or control.
Providing you have conducted all reasonable searches to locate the requested information and you believe the information is not in your possession or control, you should:
How do I produce the documents?
Documents will need to be produced directly to the issuing court or tribunal. Do not send the documents to the issuing party or its law firm.
The subpoena will specify the format within which documents should be produced to the court or tribunal, so review the subpoena carefully.
You should be able to hand deliver or post the documents in hard copy, or in an electronic format (e.g. CD, DVD or USB). In some instances, you will be asked to upload documents directly through a court portal. It is unlikely that you will be able to email the documents or send a sharefile link.
The addressee is required to sign and date the subpoena declaration.
If you are asked to produce any documents that are subject to legal professional privilege (e.g. communication with a law firm), then you should place those documents in a separate envelope that is clearly marked “privileged”. You should also provide a cover letter explaining why you have earmarked those documents as “privileged”. We suggest obtaining legal advice if you are unclear about this process or whether the documents are in fact privileged.
What if I don’t think the documents should be produced?
It is possible to object to the production of the documents or apply to set aside or vary a subpoena. Although you should first contact the party who served the subpoena to see if you can negotiate with that party to resolve your objections or request for variation, ultimately, we recommend that you seek legal advice prior to applying to set aside a subpoena.
Failure to comply with a subpoena without lawful excuse will be considered contempt of court and can lead to arrest, so you will need to act swiftly to obtain that advice.
Can I ask for more time?
Yes. You can ask for the terms of the subpoena to be varied so that you have more time to comply. You should contact the party who served the subpoena to negotiate this variation to the subpoena.
Am I allowed to share confidential information under privacy laws?
You or your organisation can share information that identifies an individual in response to a subpoena, without breaching the Privacy Act 1988 (Cth) (Privacy Act).
The Privacy Act governs all government agencies and certain other non-government organisations (which includes sole traders, partnerships, trusts etc.). If an organisation provides a health service and holds health information it is undoubtably covered by the Privacy Act.
The Privacy Act sets out 13 principles (Australian Privacy Principles or APPs) which govern the way you are required to handle your patients’ personal and health information. Importantly, the APPs include the general rule that health service providers must only disclose their patients’ health information to a third party if the patient has provided their consent for such disclosure. However, there are some limited exceptions to the rule, such as when it is required by law.
This exception includes subpoenas and orders to produce. Specifically, APP 6.2(b) provides that organisations may disclose personal information where the disclosure is required under an order by a court or tribunal.
Please note, this does not extend to allow you to discuss your patients’ private information with the parties to the hearing (or their lawyers) to prepare for giving evidence unless your patient has consented to you doing so.
Do I need to inform the relevant patient about the subpoena?
You are not legally compelled to notify your patient that you are disclosing their personal information under a subpoena.
However, you may consider informing them if you consider it to be appropriate and/or courteous in the circumstances. You would not be notifying them for the purpose of seeking their comment or permission.
What is conduct money?
You are entitled to conduct money for the reasonable loss or expenses associated with compliance with the subpoena. The conduct money will be provided by the issuing party along with service of the subpoena.
If you require assistance with responding to a subpoena or having questions about your obligations, please reach out to our team.