Tighter access to medical records that were subpoenaed in court matters could lead to innocent people being locked up and undermine the quality of justice, warn top legal bodies.
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ACT Victims of Crime Commissioner John Hinchey highlighted significant failings in the territory's current processess around court subpoenas for private medical files in a position paper released on Monday.
Mr Hinchey called for additional safeguards when health records were subpoenaed that would strike a balance between privacy and a person's right to a fair trial.
He said victims had their privacy invaded and risked being re-traumatised when their personal health records were "subpoenaed, produced, inspected, copied and divulged" to third parties without their knowledge or permission.
ACT Bar Association president Shane Gill said obtaining health records by subpoena was not "a blind, surreptitious process" and there was an implied undertaking that any health records accessed that way would not be used outside the court.
Existing safeguards also meant people or organisations who were served a subpoena for medical documents were able to make enquiries and objections. Prosectors were also entitled to review orders.
He said tighter restrictions on how the documents were accessed could undermine the quality of justice as they could interfere with a lawyer's ability to properly test evidence in court.
It also increased the risk of innocent people being locked up.
"It does not do you or the community any good if you convict the wrong people," Mr Gill said.
There were also existing restrictions on subpoenas for certain files such as counselling records for sexual assault matters, to protect a person's privacy.
Mr Hinchey suggested patients should be given the right to be alerted as soon as possible if their records were subpoenaed or otherwise obtained for court or tribunal cases.
He also called for a ban on third parties gaining access to a person's private health information and said the patient should be able to inspect the documents before they were aired in court.
An information sheet on legislation and a person's rights and obligations if their health records were called would also benefit victims.
ACT Law Society president Martin Hockridge said issues around medical record subpoenas were often debated but proposed reforms would often be to the detriment of an accused person.
"It is this balancing act and it sometimes can go too far the other way," he said.
He said safeguards built into current laws prevented any "fishing expeditions" or inappropriate actions from lawyers.
The society would certainly not object to people being provided with more information about their rights when served with a subpoena, he said.
Mr Hinchey's worries have been echoed by ACT Health Services Commissioner Mary Durkin, who is preparing a report on the matter that will be handed to Attorney-General Simon Corbell in the next few months.
Ms Durkin said she had been concerned by instances where victim's names had been published in court decisions and tribunal findings that included detailed health information.
She said people who appeared in court self-represented were often unaware of their rights when it came to having their name or other identifying details suppressed.
