First the good news

Tell me again how easy it is for a victim to make a rape allegation and stick all the way through the legal process to trial. But this second story is not just about sexual offences.

I would argue that medical and counselling notes should be sequestered from the legal process in all cases unless a compelling argument can be made for their release. In fact, I thought that this was how our system already worked.

The default expectation should be that professional confidentiality should be protected, surely? and that any motion to break that protection requires full notification of both the prosecution and the witness? If our personal medical and counselling records can be examined without us even being notified, then what is the use of professional confidentiality expectations at all?

Anyone who has been around blogs and other online forums for any length of time knows how lengthy documents can be cherry-picked for quotes that sound damning out of their proper context, and also knows that debunking such cherry-picking takes far longer than making a misrepresentation in the first place, and often seems defensive and ineffectually persuasive in comparison to the simplicity of a misrepresentation even when the debunking is entirely factually correct. What effect does this practise have on juries, do you think?

This should not stop a defence lawyer from subpoenaing an attending medical or counselling practitioner to testify in court about matters of fact that are not protected by confidentiality expectations – dates of attendance, objective clinical findings, expert opinions etc. Experts can testify ethically regarding such matters without breaking confidentiality, and be cross-examined. Release of the actual records should not be required.

Categories: ethics & philosophy, gender & feminism, health, law & order, medicine

Tags: , , , , , ,

6 replies

  1. The ABC article doesn’t discuss whether activism from the public on the issue of the release of medical and counselling records is useful or being directed, but in the absence of other ideas I will write to my state attorney-general in support of a review expressing my dismay at the current state of affairs. Thanks for this tigtog!

  2. Just on the subpoena point (and this is really only about NSW – at some stage, the other jurisdictions that have the Uniform Evidence Act in place will bring something like this in, but not all states have that, and I understand there’s still some disagreement about implementation, too).
    1. If something is able to be subpoenaed, it’s not automatically admissible (ie able to be given as evidence in court). That means that even if a complainant doesn’t win on the confidentiality argument and the defendant is able to subpoena the documents, if they’re not relevant (or if they’re inadmissible for some other reason), they simply won’t go in front of the jury at all. That means the jury will never even know the documents existed, or that the defendant tried to get hold of them, because that whole argument would have taken place without the jury present. (Ideally, it would take place before the jury is even empanelled, but that doesn’t always happen.)
    That’s not an argument that we should just let the defendant get the documents, by the way. It’s widely accepted that you still don’t want the defendant – or even defence counsel – to get a look at the material, as it might suggest avenues of cross-examination that are particularly nasty. However, I just wanted to emphasise that losing the confidentiality argument does not mean that the evidence automatically gets before the jury.
    2. The laws that are in place are the best protection that complainants have ever had, and they’ve actually been in place for a few years. There’s been no significant recent legal change. There are two real issues (and you mention both, I just want to highlight them): it’s difficult for complainants to access the protections; and the process is, well, not the best process in the world, to put it mildly.
    The law firms mentioned are part of a pilot scheme whereby if an issue like this comes up, hopefully *someone* will recognise it (like: the judge or the prosecutor), contact the people co-ordinating the scheme (I think the Women’s Legal Service), who will then get a solicitor and a barrister involved on a pro bono (ie free) basis. A bunch of solicitors and barristers have received some training in the law in this area by the WLS and the Rape Crisis Centre.
    It seems to me that the ABC article is based on a press release from the law firms (the pilot project is formally being launched tonight), probably in a bid to get a bit of advertising in, so I’m somewhat glad to see that the ABC doesn’t actually mention which firms are involved. 😉
    Anyway, none of this is to say that legal change would not be desirable – in fact, nobody I know who knows anything about the law in this area thinks that it works well as it stands. So: go ahead and lobby if you want. I just figured it might be worth clarifying what the position is. (In particular, if you are not in NSW, I would recommend finding out what the legal position in your state actually is, and whether your state has had any recent reports or recommendations in the area. It might be worth reading the relevant section of ALRC Report 102.)

  3. “In fact, I thought that this was how our system already worked.”
    Me too and I’m stunned to hear that it doesn’t. Think I’ll follow Mary’s suggestion about writing to the attorney-gen.

  4. @ Jo Tamar:
    Thanks for the extra background and clarifications, Jo.
    I probably should have emphasised that this state of affairs is not a recent change or any sort of new thing. My knowledge of it is a new thing, which is a different beast entirely.

  5. This issue just came up in one of my classes, actually. It highlights the need for counsellors and other practitioners to be extremely careful about how they word their case notes.
    Because we often blame ourselves when we’ve experienced violence/rape/abuse, statements we make about that self-blame during counselling, can be taken out of context and used against us if the matter goes to court.
    “But didn’t you tell the counsellor that you knew it was *your* fault?”
    Counsellors need to document the feelings of self-blame in a way that guards the victim from despicable defense lawyers, for example “Client has expressed feeling responsible for the attack which is very common for victims of this type of violence. We used this session to explore some of the harmful anti-woman messages that exist within our culture, and the way they are internalised. Client has begun to realise the attack was not her fault.”
    I think knowing that their case notes could be subpoenaed, could not only discourage a woman from going to court but also from accessing counselling too.
    When I was supporting my daughter through a lengthy, drawn out court case, we were unaware that her notes could be called up. Her video interview from right after the attack was being shown in the court room (in front of her rapist) and refered to constantly, and that was excruciating for her. But she was still in counselling at this time and had been for two years, so I can’t even imagine how it would have impacted her had she known that those sessions could likely be refered to as well.
    The whole process of going to court is so painful and arduous and (seemingly to me at the time) unnecessarily complicated and confusing for victims and their support people, that those regular counselling sessions are often the only thing helping the victim to even keep going with it, and they really should be sacred.

  6. @ P.P.:

    It highlights the need for counsellors and other practitioners to be extremely careful about how they word their case notes.

    A very important point, P.P. Practitioners may assume that “everybody” knows that such feelings are culturally derived rather than any sort of guilt, but the way that such notes could be distorted is a real possibility.

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