Psychiatrists concerned subpoenas could compromise patient care

Psychiatrists concerned subpoenas could compromise patient care

Psychiatrists fear patients will withhold information vital to their care because their full psychiatric histories can be subpoenaed and aired in tribunal hearings.

Canberra-based psychiatrist Dr Ingrid Butterfield said two of her patients' records had been subpoenaed by the Administrative Appeals Tribunal, at the request of the National Disability Insurance Agency, in the past month.

Canberra psychiatrist Dr Ingrid Butterfield, who is concerned about records subpoenas compromising patient care.

Canberra psychiatrist Dr Ingrid Butterfield, who is concerned about records subpoenas compromising patient care.Credit:Elesa Kurtz

The cases before the tribunal relate to the patients' disputes with the agency, which assesses eligibility for care under the National Disability Insurance Scheme.

Dr Butterfield said her patients had been shocked to discover deeply personal information they had told her in confidence would be disclosed to others as part of the tribunal process.


"If it was me, it would make me reconsider applying for a care package with the NDIA," she said.

"Because the notes that are being subpoenaed are their entire files, it can include things that [patients] disclosed years before the NDIA even existed.

"They disclosed those things not knowing their histories could be subpoenaed for this purpose. It's appalling."

Asked if she thought patients would compromise their care by holding back during their sessions to avoid their personal information being shared more widely, Dr Butterfield replied: "Yes, that's certainly a possibility."

Chairman of the Australian Medical Association Psychiatrists Group, Professor Steve Kisely, said he shared those concerns.

He said independent assessments were a much better way of resolving patients' disputes with the National Disability Insurance Agency, because the National Disability Insurance Scheme was supposed to be focused on a person's functional capacity, rather than their psychiatric history.

"There's actually no reason they should be wanting psychiatric records," Professor Kisely said.

"My concern is that it seems like a fishing trip. To use an analogy, while they're trawling for tuna, they're catching dolphins and porpoises and all sorts of things they don't need that are in those files.

"I think psychiatrists are right to be concerned that patients will self-censor because they're worried about sensitive information being released. It's bad for patient care."

Psychologists are also worried, with the Australian Psychological Society reporting a big spike in the number of its members seeking advice on how to deal with patients' records being subpoenaed.

The society's executive manager of professional practice, Dr Louise Roufeil, said it had become a major issue in the last four years.

"It's a big concern for our members that people are holding back information," Dr Roufeil said.

"There are certainly other ways to get information, like reports that don't include patients' full histories.

"It's [happening] across the board. Records are being subpoenaed for a range of purposes, not just for the NDIS, and we're concerned about who's looking at these records and trying to interpret them without the proper training."

A National Disability Insurance Agency spokesperson said it was routine for the agency to issue a summons for documents, which were usually medical records, in tribunal cases where it was the respondent.

The spokesperson said patients' reports and details were considered "protected information", meaning no one could access, use or disclose the information for purposes not outlined in the NDIS Act.

Parties to a summons could challenge the release of documents by lodging an objection with the tribunal, the spokesperson said.

ACT Law Society chief executive Dianne O'Hara said there were generally no reasons to set a properly issued subpoena aside, even when the records in question contained private information.

Ms O'Hara said a number of protections were in place to ensure information was handled sensitively, with lawyers obliged to treat personal information confidentially and comply with several privacy provisions.

Blake Foden is a reporter at the Sunday Canberra Times. He has worked as a journalist in Australia, New Zealand and the UK.

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