Topic 5: Confidentiality
This is a summary of Topic 5. Download the complete Topic 5 from the Discussion Paper.
In South Australia, counselling and medical records can be called upon as evidence during legal proceedings. This applies to domestic violence counselling.
There are two circumstances in which communications are protected under the law from being disclosed in legal proceedings:
- communications that occur between a lawyer and their client
- communications that occur during counselling relating to sexual assault. This protection cannot be waived, even if both the victim and the counsellor agree to it being disclosed.
SETTING THE SCENE: An example of the current system
During a domestic violence counselling session, Steven admitted to assaulting his partner Jessica, but has pleaded not-guilty to the offence in court. Jessica’s lawyers have subpoenaed Steven’s counselling records, and have submitted them as evidence to the court. These records strengthen the prosecution’s case.
Jessica also had counselling after the incident. Steven’s lawyers are similarly allowed to subpoena Jessica’s counselling records. By doing this, Steven will know what Jessica said in counselling.
Court discretion: Jessica’s lawyers think that the disclosure of her counselling records could put her in danger. Therefore, they request that the records are not admitted as evidence. It is up to the court to determine whether or not the records should be admitted.
Should changes be made to improve the confidentiality in court of medical and counselling records?