Confidentiality and litigation – when worlds collide

Judge Joe Harman, Federal Circuit Court Of Australia

Many professionals are bound by duties of confidentiality or fidelity to their clients. The foundations of such duties are diverse and include religious belief, protection of the efficient operation of institutions fundamental to society and therapeutic benefit. The law protects a number of confidential relationships through evidential “privileges” such as religious confessional privilege, journalistic source privilege and legal professional privilege. Many, but not all, of these evidential privileges are under attack.

Medical practitioners, including psychologists and psychiatrists, have a particular interest in their communications with patients remaining confidential. It is acknowledged and understood that breach of confidence can harm therapeutic relationships and can also lead to direct harm to the patient though disengagement from therapeutic assistance or from reaction to the disclosure, to themselves or others, of otherwise confidential information.
Notwithstanding that the potential harm to patients that might arise from disclosure of confidential material is acknowledged, the legal process in Australia does not recognise therapeutic relationship privilege. As such, the records of medical practitioners are able to be accessed in litigation without the consent of or over the objection of either a therapist or patient.

This session will discuss the relationships and communications that are protected by evidential privilege and the operation and limitations of each. This session will also consider:

  • The distinction between confidentiality and compellability and admissibility of evidence,
  • The arguments for and against the protection of confidentiality of professional relationships;
  • The approach to the protection of confidentiality adopted by a number of overseas jurisdictions;
  • Practical strategies and issues that arise when confidentiality comes into conflict with litigation and with the Court’s desire to have access to all available evidence.

The session will consist of presentation on the above topics in an interactive format to allow questions.


Biography:

The speaker is a Judge of the Federal Circuit Court of Australia . Prior to joining the Court, the author worked in private practice as a lawyer as well as working extensively as a mediator/FDRP in both private and community practice including at Blacktown and Bathurst FRCs and with Unifam (now Uniting) Penrith. The author has also lectured at Western Sydney University in family law and written and presented extensively on family law and mediation confidentiality and other evidential privileges both in Australia and internationally. In 2005 the speaker received a Stop Domestic Violence award, in 2013 was a finalist for the Australian Human Rights Commission Law Award and in 2015 was a finalist for the Law & Justice Foundation’s Justice Medal and the recipient of a Resolution Institute Practitioner Award for commitment to excellence in dispute resolution.