Survivors of sexual violence often wish to obtain professional counselling as part of their healing and recovery.
It is not uncommon for a victim survivor to firstly seek reassurances that any communication they may have with a service provider will be kept confidential.
Service providers and their employers are aware these communications are highly sensitive and will respect a victim survivor’s need for confidentiality where possible.
There are, however, circumstances where file notes and other documents relating to a victim survivor which are held by a service provider are required to be released.
Circumstances where communications may be disclosed are:
- If requested by the victim survivor;
- If required by law; or
- If the service provider determines that the victim survivor or another person is at serious risk of harm.
A REQUEST BY A VICTIM SURVIVOR
A victim survivor may request their file from a service provider. That file should be provided promptly. The request should be in writing. It should be signed and dated.
One example where a victim survivor may want their file is if that person chooses to commence legal proceedings against the alleged perpetrator.
The victim survivor may wish, for instance, to brief their own lawyer with that material.
REQUIRED BY LAW
There will be circumstances in court proceedings involving a victim survivor where disclosure of a service provider’s file will be demanded by the Defendant or some other party.
In certain significant circumstances, this disclosure is prohibited by legislation.
The rules protecting the information from disclosure differ depending on the type of proceeding and the State where proceedings are commenced.
The following information relates to court proceedings involving sexual violence that have been brought in Tasmania.
Criminal proceedings
A person may be charged with a criminal offence involving the sexual abuse of a victim survivor.
In relation to the prosecution of a person for a criminal offence in this context it is clear sexual assault counselling communications relating to a victim survivor cannot be compelled or disclosed without that person’s written consent.
This means that any application made to a court for a subpoena or summons for this information made by the Defendant or other person must not be granted by a court.
This also means any informal request for this information made the Defendant or any other person can be ignored.
Tasmania is the only State in Australia with this blanket protection.
If you are a victim survivor who receives a request or demand for disclosure of your file for criminal proceedings in another State or Territory in Australia, you should promptly obtain legal advice.
Civil proceedings
A service providers file relating to the sexual abuse of a victim survivor can be compelled in civil proceedings in Tasmania in certain circumstances.
A defendant or other person can make an application to a court to require the disclosure of these documents.
It is the court’s decision as to whether disclosure is permitted.
In making this decision, a court will balance the public interest of maintaining a communications confidentiality against the public interest of allowing an alleged perpetrator the ability to understand and respond to the allegations against them.
The court must direct that the information not be disclosed where the likely harm to the victim survivor outweighs the benefit of the evidence being disclosed.
In considering an application for the disclosure of a service provider’s file the court will consider;
- What relevance the documents may have to the proceedings;
- The importance of the evidence;
- Whether other evidence is available;
- Possible harm to the confider; and
- The public interest in maintaining confidentiality.
Family Law
In family law matters, confidentiality concerning a file relating to a victim survivor which are held by a service provider is not guaranteed.
Section 10D of the Family Law Act 1975 (Cth) allows courts to prevent protected confidences from being produced or used, including material sought by subpoena.
The courts balance the value of the evidence against likely harm and the public interest in preserving confidentiality.
Disclosure may nevertheless occur with proper consent, where required by law, or in specified circumstances involving safety, serious threats, criminal conduct, or if it is in a child’s best interests. Each request should therefore be assessed carefully before records are produced.
Please don’t hesitate to contact me for further information or advice if you:
- Are a victim survivor who needs to discuss the legal consequences of seeing a sexual assault counsellor; or
- Are an organisation that provides support to victim survivors of sexual abuse.
Beth Hanley
Lawyer: Dobson Mitchell Allport
