What is a subpoena and what steps should I take if I receive one?

Kellie Dell’Oro of Meridian Lawyers discusses the basics of a subpoena, who issues it, and what to do if you get one. We’ll also cover the validity of a subpoena, objections that can be made, and what to do if you’re called to appear as a witness.

WHAT IS A SUBPOENA?

A subpoena is a legal document, issued as part of court proceedings, which compels a person to either attend court to give evidence, or to produce documents to the court.

WHO ISSUES SUBPOENAS?

A subpoena is prepared by a solicitor in the course of gathering evidence for their client’s case, however the document is issued by a court or a tribunal. When you are subpoenaed to produce documents, you should produce them to the court or tribunal directly, and not the solicitor who delivered the subpoena. The details of where to produce the documents will be contained within the subpoena.

DO I HAVE TO COMPLY?

Provided the subpoena is valid, you are required to comply or you can be found to be in contempt of court. This means that for production of documents, you should pay close attention to the date required for production. If the subpoena requires you to attend to give evidence, you should attend court on the date specified. If you have concerns regarding the date of production or date of attendance, you should discuss those concerns with the solicitor who issued the subpoena or obtain your own legal advice.

It is important to check that the document you have received is a valid subpoena, and not simply a letter from a solicitor requesting documents. If you receive a letter from a solicitor requesting documents, you should not provide any documents without the consent of the patient or someone authorised to give consent on their behalf.

WHEN IS A SUBPOENA VALID?

The subpoena should be dated, have the name and address of the court from which it was issued, and be authenticated by the court with a court seal or the signature of a court officer. A subpoena will contain a ‘last date for service’ which is the last day that the subpoena can be validly served on you. You should check this date when the subpoena is being served on you, and if it has already passed you may inform the person serving you that you refuse to accept service.

CAN I OBJECT TO THE SUBPOENA?

The fact that subpoenaed documents are clinical records is not usually in itself a basis to object. However, if there are specific entries of a sensitive nature, for example references to family violence or information that if disclosed may impact the mental health of a vulnerable patient, then there may be a basis to object to producing some or all of the documents. If you have concerns about releasing sensitive information you should obtain legal advice.

CAN I INFORM THE CLIENT?

Yes you can, but there is no obligation for you to do so.

CAN I CHARGE FOR COMPLYING WITH A SUBPOENA?

You are entitled to recover reasonable expenses of complying with a subpoena, such as photocopying requested documents or attending court. If you seek to recover expenses you should write to the solicitor who served the subpoena, with details of the expenses you propose to recover.

WHAT SHOULD I DO IF I AM CALLED TO APPEAR AS A WITNESS?

There can be a range of reasons a practitioner may be called to appear as a witness. The most common is where your patient has suffered injury that is the subject of court proceedings (such as where they have been the victim of a crime or injured due to negligence), and the court seeks your opinion in relation to their health condition.

It is important that you understand why it is that you are called to attend so that you can properly prepare. Sometimes this might already be clear to you, but you are still welcome to phone the solicitor or Police Informant who has served the subpoena to enquire what the court seeks your assistance with. Understanding the scope of your involvement is important so that you can prepare and identify if you will need support.

If you have any concerns or questions in regard to appearing in court as a witness you are encouraged to contact Osteopathy Australia.

If you are called to appear as a witness in an Inquest or Inquiry (such as a Coronial Inquest), you should contact Osteopathy Australia as soon as possible as you may require legal support.

Kellie Dell’Oro Principal Meridian Lawyers www.meridianlawyers.com.au

This information is current as of March 2023. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.