- A Netherlands study showing that midwife-assisted homebirths are at least as safe for low-risk mothers as midwife-led hospital deliveries (i.e. most of them) has hit the headlines to balance the report concluding otherwise that was given so much publicity in recent weeks.
- The bad news? Did you know that defence lawyers in NSW and other Australian states can subpoena counsellor records of rape victims on behalf of the alleged rapist? Without the victim’s knowledge? Unsurprisingly, rape victims who discover this feel violated and tempted to withdraw from further legal proceedings.
There is some good news here as well though: victims who know their rights can argue their case and stop access to their records. But they have to know their way around the law. Activists are calling for reform, and they have the backing of some legal heavy-hitters:
for the next 12 months, three law firms in New South Wales have agreed to intervene on the victims’ behalf, free of charge. Then, support groups and state legal services will draw on those experiences in their calls for reform.
The NSW Director of Public Prosecutions agrees that the law around subpoenas needs to be tightened up. Rape crisis centres argue that more radical reform is needed to sequester medical and counselling notes from the legal process in sexual offences.
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.