Sensitive information protection: huge changes in family law act

When a client sees a psychologist, they dont expect those notes to end up in the hands of their ex-husbane or wife when they go to divorce court.  But for millions of Australians, this is exactly what has been happening.

The boom in psychology access, has been accompanied by a boom in lawyers using psychologist notes as weapons in all manner of proceedings.

In this episode, Aaron outlines a recent change to the family law act that has been a long time coming.

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Transcript

SPEAKER_00 0:00

Something massive just changed in the Family Law Act, and I just feel like I got a Christmas wish granted. Although it's a Christmas wish I've been wanting for about a decade. Now, as anyone who works with kids and families knows, psychologist notes are an absolute treasure trove for family court lawyers. Parents get divorced, lawyers get involved, subpoenas are issued, and then any shred of privacy that the family might have thought they had with their psychologist gets thrown completely out the window. These notes then get poured through like a teenager's diary, looking for something that can be weaponized in the court proceedings against each other. In fact, this practice is now so routine that a family lawyer I was speaking with recently told me, and I quote, it would be professional malpractice to not at least have a try for a fishing trip with the psychologist notes. But this all changed last year, and I'm amazed that our professional bodies have not been making a bigger deal of it. If you're a psychologist working with clients who are involved in family law matters, this affects you. The Australian government at the federal level has introduced the concept of protected confidences to the Family Law Act of 1975. This significantly changes how our session notes and records handled in family court. Now, protected confidence is now a legally recognized term for the confidential communications that we have with our clients during treatment. It doesn't just cover our session notes. It also includes direct conversations in person or over the phone, our clinical records and assessments, and even our professional communications, like GP letters and referrals to other professionals. Historically, it's been really difficult to keep records out of a court once a subpoena is issued. And I know anyone who's gone through that process of objecting will tell you how fruitless it can be. But as of late last year, the court now has to perform a balancing act. They can stop our sensitive information from being shared if the harm created by that sharing, whether physical, emotional, or even financial, is greater than the need for that information to be used as evidence. It's no longer not just routine that a subpoena gets issued and the information has to be used in court. The court now has to balance benefits versus harms. Now, in the act, we as psychologists, along with other health professionals, are referred to as the confidant, and our clients are called the confider. We have the legal standing to ask the court to protect the confider's information directly. Now it's important to know we're not required to make this application. The client can make that application themselves or a litigation guardian, or even the court themselves can initiate it. But if a subpoena is issued, your client now has a window to inspect those records at the court before anyone else sees them. And that gives them time to file that formal objection. Now, just a couple of quick caveats. If your client is an adult and has given written witness consent to share those records, these protections don't apply. Also, sadly, if you're in Western Australia, these changes don't currently apply to cases involving children whose parents were never married. So it's important to check your local legislation in case anything that I've said here is not correct. This is new information. But this is a major step forward in terms of helping our clients to feel safe in seeking support without feeling that their private therapy notes are going to be used against them. I've linked to the government's official fact sheet in the description below. And I'm really hoping to see some formal guidance from our professional bodies as to the kind of processes and policies that we can put in place so that we can best utilize these new provisions in the interests of helping our clients achieve quality of care and maintain their confidentiality. And if you find this information useful, please feel free to share it with a colleague.