Harricks and Harricks
[2014] FCCA 2724
•24 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRICKS & HARRICKS | [2014] FCCA 2724 |
| Catchwords: FAMILY LAW – Parenting – medical intervention to treat the child’s needs – suggestion that medical services will not provide medical service to child to treat medical needs whilst the parties are engaged in litigation or if there is any basis upon which litigation might arise – psychiatrist-patient confidentiality. |
| Legislation: Family Law Act 1975, ss.10B, 10C, 10J, 65F, 67ZC Evidence Act 1995 (NSW), s.126B |
| Makita & Sprowles (2001) 52 NSWLR 705 Unitingcare - Unifam Counselling & Mediation & Harkiss [2011] FamCAFC 159 |
| Articles cited: Levy, J, Galambos, G and Skarbek, Y, ‘The erosion of psychiatrist-patient confidentiality by subpoenas’, Journal of Australasian Psychiatry, vol 22, no 4, 2014, 332-336. Altobelli, T and Bryant D, ‘Has confidentiality in family dispute resolution reached its use-by date?’ published in Hayes, A., & Higgins, D, (Eds.). (2014), Families, policy and the law: Selected essays on contemporary issues for Australia, Melbourne: Australian Institute of Family Studies. |
| Applicant: | MR HARRICKS |
| Respondent: | MS HARRICKS |
| File Number: | PAC 5707 of 2007 |
| Judgment of: | Judge Harman |
| Hearing date: | 23 October 2014 |
| Date of Last Submission: | 23 October 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 24 November 2014 |
REPRESENTATION
| The Applicant is self-represented |
| Counsel for the Respondent: | Ms Breeze |
| Solicitors for the Respondent: | H A Miedzinski |
| Solicitors for the Independent Children's Lawyer: | Mr Nasti of S P Nasti & Co Solicitors |
ORDERS
Vacate the trial of these proceedings 23-24 October 2014.
List the proceedings for mention at 2:15pm on 24 November 2014.
Each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to source, agree upon and engage their son [X] born [omitted] 2005 with an appropriate medical service (including psychologists and/or psychiatrists) to deal with and treat his generalised anxiety disorder as diagnosed by his prior treating psychologist, Ms S.
Pending further Order, each party and the Independent Children’s Lawyer shall be and are hereby restrained from:
(a)Causing any subpoena to attend and give evidence to be issued or served upon any treating medical practitioner or member of staff of any public health agency providing treatment to [X];
(b)From requesting any report in writing from any such persons.
IT IS NOTED the above Order does not preclude the parties or the Independent Children’s Lawyer issuing and serving a subpoena for the production of documents as is their legal entitlement, any infringement of which would be to fundamentally deny them due process.
IT IS NOTED that the parties have made significant enquiries of myriad individuals and public health agencies as to an appropriate service to provide treatment to their child to meet his genuine and present medical need but each provider contacted, including public health services, have suggested, by reference to internal policy, that they are unable to provide necessary health treatment to [X] if and whilst so ever his parents are engaged in proceedings before this Court.
Request the Registrar of the Court should they consider it appropriate, to forward a copy of these Orders and reasons to the Australian Medical Association or such other professional body seized with accreditation, registration and or supervision of medical practitioners (including psychologists) to seek some address of the concerns raised therein.
IT IS NOTED that publication of this judgment under the pseudonym Harricks & Harricks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5707 of 2007
| MR HARRICKS |
Applicant
And
| MS HARRICKS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings relate to future care arrangements for a young child [X] born [omitted] 2005.
The parties to the proceedings are [X]’s parents namely, Mr Harricks his father and the Applicant and Ms Harricks his mother and the Respondent.
The proceedings were listed for a two day trial 22 and 23 October 2014. The trial has not proceeded. The matter will now be adjourned for mention to determine what further case management orders are required but primarily to allow an address of the child’s medical needs. The child’s medical needs are not presently being met.
The evidence with respect to [X]’s medical needs
A significant issue in the proceedings is the diagnosis of generalised anxiety disorder experienced or suffered by [X].
The evidence regarding [X]’s anxiety disorder is found in:
a)The mother’s Affidavit sworn 23 April 2013;
b)The mother’s Affidavit sworn 12 September 2014;
c)A short letter under the hand of a clinical psychologist Ms S dated 14 November 2012. There are a number of issues regarding the admission of that evidence and which issues I will touch upon shortly;
d)A letter or report of Ms S dated 24 July 2013;
e)An email from Ms S dated 10 April 2014; and
f)A Family Report prepared by Ms G and dated 17 March 2014.
The chronology of the relationship between the parties and [X]’s time and interaction with his father is of some relevance and can be briefly summarised as follows.
The parties met whilst Ms Harricks was living and working in [country omitted]. Ms Harricks was born in Australia and Mr Harricks was born in [country omitted]. Whilst the parties were “dating” Ms Harricks realised that she was pregnant.
Whilst pregnant Ms Harricks returned to Australia and, after a short time, Mr Harricks also travelled to Australia and has since remained.
The parties were married [omitted] 2005.
The parties separated 21 November 2005 at which time [X] was two months of age.
Ms Harricks asserts that Mr Harricks did not, in the early years of [X]’s life and until he was approximately 3 years of age, spend any significant time or have any real engagement with him.
In 2008 the parties attended Family Dispute Resolution and would appear to have agreed on a set of arrangements with respect to [X]’s time with his father. Ms Harricks described that her consent to the agreement was “reluctant”. However, this agreement was put into effect and [X] began to spend one night per week with his father which, in the latter part of 2009, increased to stays of two nights per week.
In May 2010, Ms Harricks was involved in a serious motor vehicle accident as a result of which she experienced severe spinal injuries and was required to undergo a period of hospitalisation involving operative intervention. It would appear that for some of the period that
Ms Harricks was hospitalised (although it is unclear how long this period was) that [X] stayed with his father.
At or around this time (the latter part of 2010) Ms Harricks relocated with [X] from the western suburbs of Sydney to the southern suburbs. This was not, objectively, a significant move. As a consequence of the distance between the parties’ homes however or, as Ms Harricks suggests, Mr Harricks’ displeasure with this move, time between [X] and his father was then significantly interrupted and time was irregular and infrequent.
Ms Harricks suggests that [X] has, since birth, experienced significant difficulties with sleep and has, since starting school, exhibited concerning behaviours suggested to be related to a generalised anxiety disorder. This has, in addition to the sleep difficulties, manifested as “crippling panic attacks”, losing bladder control, poor attention at school and what might be generally referred to as “crippling shyness”.
In October 2011, Ms Harricks first sought medical advice with respect to the concerns expressed above. Ultimately, an appointment was made for [X] to consult with a clinical psychologist, Ms S. [X] then attended six appointments with Ms S from 15 November 2011 to 18 February 2012. It is suggested that these appointments had a good effect for [X] and that following the conclusion of those appointments in February 2012, that [X] was able to once again sleep soundly in his own bed. Further, as a consequence of both [X]’s appointments with Ms S and efforts taken by Ms Harricks she “… established that [X]’s anxieties, particularly his sleeping anxieties, are best controlled by way of a regimented routine”.
By late 2012 it is suggested that [X]’s anxiety had again increased and was at such a significant level that Ms Harricks was experiencing an inability to have [X] attend school or visits with his father. Whether as a corollary to his anxiety or otherwise it is suggested that by December 2012 [X]’s relationship with his father had deteriorated to such an extent that Ms Harricks suggests she heard [X] saying to his father “I don’t want to talk to you. You always lie to me. I don’t love you any more”.
These proceedings were commenced by Mr Harricks in February 2013.
A Response was filed by Ms Harricks 26 April 2013 by which she proposed that [X] would spend time with his father each alternate Sunday between 12noon and 4pm and for other, non-overnight periods during school holidays and for special events.
Orders were made by consent in 2006. These orders provided that [X] would spend time with his father “for a single period of up to 4 hours each week at times and locations as agreed between the parties and failing agreement at the address of the mother’s parents”. Clearly, following the making of those orders, and as a consequence of the accord reached between the parties with the assistance of a Family Dispute Resolution practitioner time between [X] and his father substantially increased.
By the time that these proceedings were commenced by Mr Harricks (February 2013) no overnight time was occurring. No overnight time has occurred since the proceedings commenced. In fact, all time between [X] and his father has broken down and time and communication has not occurred since January 2014, notwithstanding:
a)Orders made by consent 22 May 2013, which provided for (albeit brief) periods of time between [X] with his father and telephone communication; and,
b)Further orders made by consent 15 October 2013, which orders provided for increasing periods of time building up to periods of six hours at a time.
In December 2013 [X] resumed appointments with his psychologist
Ms S. At that time a referral was made by the mother’s treating general practitioner and a mental health care plan produced. That plan is annexed to the mother’s material and indicates that the basis of the referral is “sleep problems, conduct disorder, mental disorder not otherwise specified” and “main problems/diagnosis: sleep, mood swings, separation anxiety”.
Shortly after recommencing appointments with Ms S it is suggested that:
a)[X] spent the day with Mr Harricks for Christmas Eve;
b)
Mr Harricks telephoned on two occasions on Christmas Day to speak with [X]. On the second occasion and whilst [X] was making his way to the telephone, Ms Harricks suggests that she was subjected to a barrages of verbal abuse by Mr Harricks and that [X], being in such proximity to Ms Harricks and
Mr Harricks’ voice being so raised, is suggested to have heard comments made by Mr Harricks of an unsavoury and unpleasant nature. Mr Harricks denies the words ascribed to him; and
c)Time between [X] and his father broke down completely and notwithstanding, as expressed by Ms Harricks, one of the stated objectives for resumption of therapy being to address concerns regarding [X]’s relationship with his father.
After the resumption of appointments with Ms S and on 10 April 2013 Ms S wrote to Ms Harricks stating:
I need to refer [X] to another psychologist that is more familiar with the court process.
As I said to you when [X] first came to see me for treatment of his anxiety around sleeping independently, I do not take on work with matters that go to court and/or with custody issues. I have since been requested to provide recommendations and reports for your custody matter. I am not comfortable providing expert opinion on this due to lack of sufficient time with [X] to assess and unfamiliarity with court proceedings. I am not able to provide any further assistance in this respect.
I am thus going to recommend you speak with Ms B at CAPS to see if she has someone she can refer you to (or see herself) so that you and [X] are able to consult with someone who better understands and is willing to work with family court issues. I am happy to liaise with Ms B regarding the details of the limited number of individual sessions I have had with [X].
Immediately prior to this, the parties and [X] had attended Family Report interviews. Those interviews had occurred on 11 March 2014. Whilst it is not referred to in the portion of the Report enumerating as a source of information obtained by the Family Consultant it is clear, at paragraphs 35 – 39 (inclusive) under the heading “Telephone conversation with Ms S, Psychologist” that communication with Ms S occurred. Thus, it would appear that Ms S’s reluctance to continue to provide therapeutic intervention for young [X] arose in the context that she had described, namely, the lack of desire to become a witness in or provide evidence with respect to these proceedings.
The evidence of Ms S
Two reports written by Ms S are annexed to the Affidavit material of Ms Harricks. No objection is raised by Mr Harricks or the Independent Children’s Lawyer as to the form of this evidence. There is nothing to suggest that Ms S will be available for cross-examination with respect to the contents of those reports or for that matter, that disclosed by her to the Family Consultant and as set out in the Family Report.
The first report prepared by Ms S (dated 14 November 2012) is addressed “Dear Mediator”. The document would appear to have been prepared at the request of Ms Harricks (there is no issue that
Mr Harricks has not been involved or significantly involved in any consultation between [X] and Ms S) and for the purpose of bringing certain information to the attention of the Family Dispute Resolution Practitioner upon whom the parties attended in 2012.
There is a significant issue as to the admissibility of this report not only as to its form and the unavailability of Ms S for cross-examination but by reference to section 10J of the Family Law Act 1975 dealing with the inadmissibility of such communications.
Section 10J provides as follows:
10J Admissibility of communications in family dispute resolution and in referrals from family dispute resolution
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family dispute resolution practitioner conducting family dispute resolution; or
(b) a person (the professional) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).
(4) A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
I am satisfied that the report would not be excluded by reference to the above section as it does not represent “evidence of anything said or admissions made to or in the presence of a Family Dispute Resolution Practitioner”. It is clearly information placed before the FDRP. It is, however, a document prepared prior to Family Dispute Resolution although clearly in anticipation of its provision to the Family Dispute Resolution Practitioner.
The report is not prepared in anticipation of litigation but mediation. There is some serious question as to whether it could, however, be properly described as a business record. Issue also arises as to the prejudice to Mr Harricks of the admission of the report in light of the above matters and particularly as Mr Harricks will not, in all probability, have the opportunity to cross-examine Ms S.
The involvement of Ms S, as a supplier of information to firstly the Family Dispute Resolution Practitioner and then the Family Consultant (and it would appear clear that a further and third request was then made of Ms S by a letter 30 April 2014 from the attorneys of
Ms Harricks to Ms S requesting a report albeit that correspondence is not before the Court (it is referred to in the report subsequently provided by Ms S)) has, as it were, “closed the door” upon [X] receiving further therapeutic assistance with the clinician with whom he has engaged and with whom he had developed a rapport and therapeutic relationship. That is highly regrettable.
Notwithstanding the above concerns, I propose to rely upon Ms S’s report dated 14 November 2012 together with her subsequent report dated 24 July 2013. This latter report was clearly prepared at the request of the attorneys for Ms Harricks. There is no objection to its admission. The only indication as to the basis upon which it was sought to be prepared is the reference by Ms S at the commencement of that report “please find my answers to your questions below”. It is unclear whether the report was prepared for the purpose of providing information to assist the attorneys for Ms Harricks in advising
Ms Harricks or whether it was prepared for the purpose of litigation. In the latter event the report would be inadmissible. In all probability the difficulties with its admissibility would remain as it is unlikely that the document could be properly described as a “business record”.
I have admitted the above material primarily as:
a)There is no objection to its admission;
b)
Ms S’s two reports are written in an entirely appropriate manner and do no more than set out her history of engagement with [X] and her treatment, diagnosis and prognosis for his condition.
Ms S’s reports are highly professional and whilst not making specific reference to the code of expert witnesses, they comply fully with that code. To that end, Ms S has perhaps done herself a disservice by suggesting that she is unfamiliar with court processes or that required to be engaged with Court processes. Her reports are written in a fashion that are not only professional but reflective of best practice;
c)I am not satisfied that the reports should be excluded purely on the basis of defects of form. This is so as I am not satisfied that Mr Harricks, who does not object to their admission, although I am conscious that he is self-represented, would not be prejudiced by those reports, their contents or reliance thereupon and could, if he so desired, be afforded the opportunity to cross-examine the author including, if necessary, through the issue of a subpoena to give evidence;
d)The reports of Ms S together with that related within the Family Report are the “best evidence” that is available regarding [X]’s diagnosis, prognosis and past and recommended future medical treatment; and
e)Exclusion of the evidence (whilst the least weighty of the issues in favour of their admission) would create significant Makita & Sprowles (2001) 52 NSWLR 705 issues as regards the Family Report. Indeed, I am satisfied that the difficulties that would arise would be so significant that they would, if issue were taken, in all probability lead to the Report’s rejection.
In the first of her reports Ms S indicated:
[X]’s presenting issues included being unable to be alone in any room at home (even if his mother is in an adjoining room), being unable to sleep in his own bed and school refusal…
…frequent oppositional behaviour (directed at her and her family members) [that is Ms Harricks].
The report concluded:
By the end of my time with [X] he had started to make some gains (he was able to sleep in his own bed for 2 nights at the time of termination) and [Ms Harricks] more confident to continue their anxiety-management plan. I have not seen [X] since February 2012, but I heard from his mother that he had continued to progress well until recently when he began having increased contact with his father. [Ms Harricks] advised over a telephone call that she believes [X] has relapsed due to this increased contact.
I note that Ms S does not offer any opinion as to whether the chronological coincidence of the suggested deterioration in [X]’s symptomology and his increased time with his father was causally connected. Any opinion offered as to a causal link between the two is in the context of reporting that related by Ms Harricks.
The second of Ms S’s reports was written prior to [X]’s re-engagement. Accordingly, the opinions expressed relate to the six appointments which had occurred earlier and which concluded February 2012. There was also some difficulty in placing portions of the information within a context as Ms S is clearly answering 10 questions specifically posited to her in the correspondence from the attorneys for Ms Harricks, which correspondence is not before the Court.
Ms S makes clear that, as at her [then] last engagement with [X] in February 2012 that he met the diagnostic criteria for “separation anxiety disorder”. Ms S was also clear that her treatment of [X] had been terminated prior to its completion and that a relapse in [X]’s condition was likely if not probable.
Ms S offered the opinion that:
While routine is important to a child with an anxiety disorder, it is my clinical opinion that a child with anxiety must also learn to bear reality and the inevitable requirements to become flexible responders to change. This is to avoid entrenching anxiety via inflexibility and avoidance.
Ms S also offers the opinion that:
It would be ideal if both parents attended sessions aimed at learning to coach [X] through periods of anxiety so that he did not regress. Ideally both parents would be on-board with each other and use consistent strategies to ensure that [X]’s avoidance of anxiety-producing situations (for example being alone, sleeping alone in his own bed and going to school) did not return.
In light of this opinion it is disturbing that Mr Harricks has not been invited to participate in the therapeutic treatments which have occurred to date.
Ms S was clear that further treatment for [X] was recommended and expressed the view that “anxiety disorders in children and adults are very treatable”.
The Family Report writer has set out her conversation with Ms S and including the following (at paragraph 36):
[X] was suffering anxiety symptoms again [January 2014] but this time [X]’s anxieties related to spending time with his father…
By 12 February 2014 [at which time [X]’s communication and time with his father had broken down completely and ceased] [X]’s fears about spending time with his father had escalated to the point where he apparently told Ms S that if he was forced to go and spend time with this father he would jump out of the car. Although Ms S’s discussions with [X] are confidential [on which basis it is suggested to be so is unclear such discussions not being protected by any confidentiality or privilege recognised at law] Ms S told [X] that she had to reveal his disclosure to his mother for safety reasons.
Ms Harricks, through her counsel, has been clear in indicating that she does not conduct her case on the basis of suggesting that Mr Harricks is the cause of [X]’s anxiety. The matter has preceded on the basis that such anxiety as [X] experiences impacts upon his relationship with his father and the capacity for arrangements to be fulfilled, rather than suggesting that his anxiety is a response to his father. It is on this basis that [X]’s anxiety disorder is clearly a medical issue which requires medical intervention and address and if appropriately treated (as to which, again, Ms S suggests it is eminently treatable) that his relationship with his father, and many others, will be advantageously advanced.
That relayed by Ms S through her reportage in the Family Report and the positions advanced by Ms Harricks are not entirely consistent. However, clearly a diagnosis has been advanced with respect to [X] as well as the clear recommendation that [X] requires treatment for his “readily treatable” anxiety disorder and the prognosis that absent treatment that [X] will continue to be adversely impacted by the disorder.
Finally, as regards Ms S’s evidence the following is offered via the Family Report:
When it was suggested to Ms S that a break from spending time with his father might be indicated, Ms S replied that she ‘worried about the long-term implication’ of that. Ms S is of the view that the best outcome for [X] would be for both parents to work together. She mentioned the idea of ‘coaching’ the parents. However as she is [X]’s therapist, she feels she cannot be the person to do this. She believes that [X] may ‘feel betrayed’ if the therapist he confides in is working with his parents.
The above is entirely consistent with that offered by Ms S in her earlier reports particularly as regards the need for both (emphasis added) parents to be involved in any treatment provided to [X]. However, it would also appear to be the basis or one of the bases upon which the parties and the Independent Children’s Lawyer, perhaps to varying extents, have conflated therapeutic medical treatment of [X]’s anxiety disorder and “family therapy” to address any underlying difficulty in [X]’s relationship with his father the later not being at all necessary if there is no casual connection.
Medical treatment
When the matter was first called the situation of the parties, as regards both the breakdown in [X]’s time and communication with his father, and the absence of treatment for [X] due to Ms S’s withdrawal, were identified. At that point it was made clear that the treatment of [X] was a fundamental concern as regards his welfare on a global basis, let alone its clear and obvious connection with impeding the child’s relationship with his father. This concern, as expressed by the Court, was adopted by both parents and the Independent Children’s Lawyer.
On the basis of the mother’s case as it is presented [X]’s anxiety is not directly connected to his father although, the existence of that disorder impacts upon his relationship with his father. More importantly it clearly impacts upon his general health and functioning.
In her evidence Ms Harricks has related one experience for [X] which has demonstrated his ability to overcome his anxiety. At paragraph 85 of her trial Affidavit Ms Harricks’ speaks of [X]’s enrolment in a rugby [sport omitted] team. He is expressed by Ms Harricks to have been initially shy and reluctant to speak to his coaches but over the course of the season, gained significant confidence, such that he is comfortable in their company, observed to joke and “clown around” with them, physically interact with them and “high-five them”. These are the very behaviours which, at the Family Report interviews, young [X] declined to engage in with his father (who sought to hug [X] who refused and when his father sought to “high-five him” he again refused).
The only causal connection suggested between [X]’s anxiety disorder and his relationship with his father is the expression in the Family Report as [X]’s fear and concern about “being away from his mother to spend time with his father…A trigger seems to have been [X]’s belief that his father was trying, through the Court, to get [X] to live with him, in effect reactivating [X]’s fear of separation from his mother”.
It is entirely unclear how, why or from where [X] would have received information which would be the basis of such a belief. It is possible that the belief is entirely irrational. However, equally concerning, there is nothing in the evidence that would suggest that any person, neither his parents, the Independent Children’s Lawyer nor the Family Report writer have ever sought to disabuse [X] of the belief.
In light of the concerns raised as to the necessity for [X] to receive treatment for his anxiety disorder, for the sake of his health, functioning and well-being let alone determination of the proceedings, a number of specialised anxiety disorder clinics were identified to the parties and the Independent Children’s Lawyer and the matter stood in the list to enable enquiries to be made of those services, Ms S, the Family Report writer together with any other agency and with a view to [X] being engaged in appropriate medical treatment. These enquiries occupied the entirety of the first listed day of hearing.
Initially it would seem that enquiries were made with respect to family therapy or family counselling. Those lines of enquiry were ultimately terminated and the attention of the parties and the Independent Children’s Lawyer was specifically directed to and focused upon medical interventions to meet this child’s medical needs.
The parties returned to Court on the second scheduled day of hearing and continued to make enquiries. When the matter was eventually called on, as all other business of the Court was completed, it was suggested by counsel for the mother and the Independent Children’s Lawyer that a number of services and agencies had been contacted including, the [omitted] Adolescent Mental Health Unit and a number of hospital and community mental health services. With respect to each of those services it was suggested that each had clearly indicated that they would not provide medical service to this child to treat his medical needs (a diagnosed anxiety disorder) whilst the parties were engaged in litigation or if there was any basis upon which litigation might arise.
It must be made clear that Mr Harricks advised the Court that he had made his own enquiries and had located a service, the Centre for Emotional Health, which would provide service to [X] with an initial assessment cost of $160 together with fees for a specified number of appointments of $500. Mr Harricks indicated his willingness to meet the upfront assessment fee and to meet one half of the appointment costs.
The parties were unable to agree on a service that would meet [X]’s medical needs. The bases upon which agreement to use of the service identified by Mr Harricks was not forthcoming is unclear.
In light of the impasse, after two days of discussion and enquiry of external services, the Court had no alternative but to adjourn the proceedings for further mention so that enquiries could continue and one would hope, the parties would agree upon the appropriate medical practitioner or practitioners to assist [X] with his medical needs and engage [X] with that service.
[X]’s needs
[X] has a medical condition. It is not physiological it is psychological. It has, however, been clearly diagnosed by a person eminently qualified to do so. That clinician has also made clear the need for ongoing treatment and the treatability of the condition.
It is suggested by the parties and the Independent Children’s Lawyer that public health services and hospitals have refused to provide medical treatment for [X] if there is any prospect of their notes being subpoenaed. That position, if real, beggars belief.
I make clear that all discussion with such services has taken place between the parties and the Independent Children’s Lawyer and those services. The Court is not privy to that which has been related to those services or that which has been advised by them. However, counsel for the mother and the Independent Children’s Lawyer both advise the Court that they have been advised that even if [X] has been diagnosed with a medical condition which requires treatment and referred for treatment, that they will not accept him as a patient to provide necessary medical services if there is litigation on foot or the possibility of it.
If the above suggestions are accurate then this would appear to be a breach, by those services, of their ethical and professional obligations as medical practitioners and in all probability, their funding and service delivery guidelines. However, I again make clear, that the Court is not privy to anything which has passed between the services and counsel for the mother and the Independent Children’s Lawyer. Further, it is curious that the father has been able to locate a service that the father indicates have been advised of the pending litigation and notwithstanding that knowledge, the service is perfectly content to take on the child as a patient and to provide treatment to the child.
I am conscious of and have raised with the parties and Independent Children’s Lawyer an article published in the most recent edition of the Journal of Australasian Psychiatry “The Erosion of Psychiatrist-patient Confidentiality by Subpoenas” by Levy, Galambos and Skarbek. Whilst that article was specifically focused upon the impact of subpoena upon “patient privilege”, it also speaks more broadly to the confidentiality concerns held by clinicians when there is, as a consequence of litigation, ready access to patient records. The authors opine that:
A subpoena of psychiatric records may be credible in exceptional circumstances, where there is a demonstrable risk to society and the public benefit of breaching confidentiality outweighs the clinical risks to the patient and society of doing so; however, in most other instances, subpoenas violate the confidential nature of the Dr-patient relationship. Confidentiality is instrumental to the development of therapeutic relationship that facilitates optimal psychiatric care.
In support of the above proposition reference is then made to a number of other sources such as a paper by Robertson and Walter “Many Faces of the Dual-role Dilemma in Psychiatric Ethics” published in the Australian and New Zealand Journal of Psychiatry 2008 and the Australian Medical Association Code of Ethics 2006.
The above article importantly draws attention to a number of relevant considerations including:
… Consideration of the harm, if any, that may be caused to the patient or therapeutic relationship should access to the psychiatric records be granted.
Failing to safeguard confidentiality risks members of the public being deterred from seeking medical attention or modifying the personal information they disclosed due to fears that their privacy might be breached.
I make clear that [X]’s views regarding the waiver of his “privilege” as regards that which has passed between he and Ms S are not known.
The above article also contains the following reference to previous Law Reform Commission consideration of the issue:
The Australian Law Reform Commission (ALRC) recognised in 1985 that there existed a ‘very real conflict between the doctor’s ethical obligations and the demands of the law’ and that this was ‘a serious problem’. In recommending that there was a need for some form of privilege, the ALRC acknowledged the position that: The [psychiatrist]-patient relationship is one in which confidentiality is crucial and in which the utmost trust and confidence must be held by the patient. It is said that without complete confidentiality, therapy is unlikely to produce the results that society would want. To this extent, it is argued that the relationship may be distinguished from the physician-patient one, since confidentiality is of the very essence of the relationship with the psychiatrist, whereas with the physician it is merely one of its aspects. Under these circumstances, the need of psychiatrists and their patients for confidentiality is more urgent than that of doctors and their patients
The authors refer to the Australian and New Zealand College of Psychiatrists Code of Ethics (4th Edition), July 2010 which provides:
...a dedicated principle that ‘Psychiatrists shall strive to maintain confidentiality of patients and their families’. It stipulates that: ‘A breach of confidentiality may be justified on rare occasions to promote the best interests and safety of the patient or of other people’ (our italics)
It is perhaps this formulation and understanding of “confidentiality” that Ms S has referred to in her reports as discussed above. However, such “confidentiality” in a legal sense does not exist save for limited exceptions such as section 126B of the Evidence Act 1995 (NSW), priest/penitent confessional privilege, journalistic privilege, legal professional privilege and public policy community, none of which apply in this case.
There is also the important distinction, in law, between “confidentiality” and “admissibility” (as discussed by Coleman J sitting as the Full Court in Unitingcare - Unifam Counselling & Mediation & Harkiss [2011] FamCAFC 159). That discussion relates to confidential relationships protected by legislation and recognised at law unlike the confidentiality of clinician-patient communications which are not so recognised.
Set against all of these concerns is the ethical dilemma identified by the above authors:
Psychiatrists learnt in medical school the ethical values of non-maleficence (primum non nocere or first, do no harm) and beneficence. Two corresponding vows of the Hippocratic Oath that relate specifically to confidentiality are: ‘That whatsoever I shall see or hear of the lives of my patients that is not fitting to be spoken, I will keep in confidence’ and ‘That I will be an advocate for patients in need and strive for justice in the care of the sick’.
I can understand the concern and sensitivity of medical practitioners regarding confidentiality from the perspective of the welfare of their patients, the efficacy and effectiveness of therapy and the onerous burden placed upon those services in complying with subpoena. However, it is difficult to see how the refusal of service, if that has occurred or been apprehended, is at all consistent with the obligation of non-maleficence or any obligation to aid the sick.
The role of the Court may well contain elements of therapeutic jurisprudence. The extent of the Court’s role in therapeutic engagement of parties in external services is largely defined by the legislation (e.g. part II, section 65F and section 67ZC). A broader discussion of therapeutic jurisprudence in the determination of disputes under the Family Law Act is for other times and fora.
The primary role of the Court is to hear and determine controversy. In doing so the Court must receive probative evidence that allows determination of issues in dispute and identifying and allowing address of children’s best interests.
In addition to the above articles I am also conscious of the writings of authors such as Chief Justice Bryant and Judge Altobelli in their article ‘Has confidentiality in family dispute resolution reached its use-by date?’ which article, whilst focused on Family Dispute Resolution rather than the issue at large in this case, might cause some valid alarm for authors such as Levy et al. After all, what might be perceived as a call for review of a statutory regime of confidentiality and inadmissibility such as that afforded to Family Dispute Resolution would give no comfort to Levy et al, let alone individual therapists and clinicians, that their professionally mandated ethical value of confidentiality, with no legislative or common law recognition let alone protection, is likely to be regarded as significant in litigious processes.
I can understand the uncomfortable position that the above places medical practitioners in. I cannot change the law regarding the recognition of patient-clinician confidentiality (that is a matter for Parliament and/or superior courts). However, [X] needs medical treatment.
It is beyond the power (or appropriateness) of the Court’s exercise of discretion to seek to create confidentiality or inadmissibility regarding the medical treatment of [X] - such as through a blanket order restraining the parties and Independent Children’s Lawyer issuing subpoena.
[X]’s diagnosis of anxiety disorder is, however, somewhat pivotal to the determination of his best interests not only at law but more broadly. Thus, his treatment is of fundamental importance. Evidence as to his diagnosis, treatment and prognosis is highly relevant to the case. The parties must be able to obtain evidence without fetter. That includes evidence of treatment.
Whether the parties were presently involved in litigation or not there is always the possibility that records of medical practitioners including psychologists and psychiatrists will be subpoenaed. If one were to take the concerns of such medical services, accepting for one moment that they have been expressed as the Court is advised, that they will not commence treatment as their records might be subpoenaed now or at some future time, then no child could ever receive treatment.
If these parents were presently together it is conceivable that they might separate and become involved in litigation. Based on any cursory consideration of material from the Australian Bureau of Statistics, there is something approaching a 50 percent probability that any relationship might end in separation.
Litigation might arise in other contexts such as personal injury claims, coronial enquiries and the like. It would be folly for any medical service provider to believe that their records will be guaranteed safe from subpoena and litigious scrutiny in any given circumstance.
[X] has a medical condition. It may be a psychological or psychiatric condition but a medical condition it surely is. It requires medical treatment.
If [X] had a physiological condition, a broken arm or leg and was presented to a medical practitioner by a parent who then indicated that they were separated from the child’s other parent, one could not imagine that medical treatment would be refused.
If parents were still together and jointly presented the child but in circumstances where there might be some concern or suspicion as to the cause of injury requiring mandatory notification to State welfare agencies then, again, one could not imagine the treatment would be refused even though clearly there would be a high probability that records would be subpoenaed.
Even if parents who were together were not suspected of any wrongdoing regarding the injury to their child then there would still be a high probability of their eventual separation (at least even odds) and thus the potential for the records to be subpoenaed. Even if the parents did not separate there might still be such a possibility if, for example, the child had been injured at school and negligence was alleged.
I again make clear that I am reliant upon that communicated to the Court by counsel for the mother and the Independent Children’s Lawyer being that each of the medical services contacted (with a view to [X] being engaged with those services and receiving medical treatment), has declined to provide service on the basis that the parents are separated and thus records might be subpoenaed.
I am also conscious that:
a)A number of early enquiries were made on the basis of seeking to “pursue family therapy” rather than the simple address of the child’s diagnosed medical condition. Such an approach was unnecessary, wasteful and possibly misguided noting that the mother, in her case (though somewhat at odds with that alleged by her to the Family Consultant), does not assert that the child’s anxiety is causally connected to the child’s relationship with the father but rather, that the child’s relationship with the father is impacted by the diagnosed anxiety disorder; and
b)The father was able to locate a service which did not appear to have such qualms.
After two days of discussion and negotiation, no service or medical practitioner could be nominated by the Independent Children’s Lawyer as an appropriate medical service to which [X] might be referred and with which [X] might engage to receive treatment for his anxiety disorder. If it is, in fact, the reality that all services (the specific details of which are not known to the Court) have refused service and treatment to [X] purely on the basis that his parents are engaged in proceedings before this Court and that their records might thus be subpoenaed, then it is a most disturbing and appalling state of affairs.
The proceedings must be adjourned to enable a medical service to be located which will treat [X]. It is of fundamental importance to [X]’s best interests, future health and welfare and present and future functioning that he receives treatment. His parents agree that this is so. It is thus tragic that after two days of negotiation, whatever those discussions might have comprised, that these parents are unable to agree even upon that. Their inability to agree is positively detrimental and disadvantageous to [X]’s best interests.
Connected with this are the tensions which have arisen between them in the past from disputes regarding the apportionment of liability to meet the financial cost of medical services which has apparently led to an application to the Child Support Agency for change of assessment as well as failure, for whatever reason, of both parties to have been properly and fully engaged in [X]’s treatment by Ms S (as she made clear, was appropriate and desirable).
I make clear that it is the role of this Court to hear and determine the parenting dispute between Mr and Ms Harricks. However, in light of [X]’s clear medical need (being to receive treatment for his anxiety disorder) it is not possible for that dispute to be heard or appropriately heard and determined until such time as the parties have located and engaged with an appropriate medical service to meet [X]’s needs. To proceed to hear the parenting dispute without the address of [X]’s clear medical need would be to ignore his best interests.
It is necessary for the Court to make orders to secure [X]’s medical treatment (and the engagement of each of his parents in that treatment) as part of a determination of the dispute between these parents regarding the exercise of parental responsibility. I am otherwise satisfied that it is an issue that would fall within the Court’s general welfare jurisdiction (section 67ZC of the Act).
In light of the significant rate of separation and divorce (let alone a consideration of the number of children born to parents who have never married or possibly never cohabited) any policy by a medical service to refuse treatment to children in circumstances where litigation is extant or possible would inevitably lead to the refusal to treat any child. The natural extension of such policies would be to also refuse treatment to any child the victim of a criminal act (such as abuse or assault) or the subject of neglect.
For a medical service adopting a policy as described, founded upon a desire to ensure that their records are never subpoenaed, then it would be unwise for them to ever treat a child. Parents need not even separate for the possibility of proceedings regarding their child’s welfare to arise. It is entirely conceivable that, for example, a grandparent might bring an application under the Family Law Act 1975 with respect to a child who still lives with their parents in an intact family or that two parents in an intact family might be required to bring an application before the Court such as, for example, if their child is transgender and they seek to proceed with what has become termed as “Stage II” treatment.
In the event that policy exists within any medical service to refuse treatment to children in any circumstances which might lead to the subpoena of their records then clearly such policies are contrary to the needs and interests of children who require medical treatment, in all probability such policies would be entirely contrary to the Hippocratic Oath and for the reasons outlined above complete folly.
A copy of these Reasons will be sent to the Registrar of the Court with a request that should the Registrar consider it appropriate that some approach might be made to relevant medical and professional bodies to ascertain whether they are aware of the existence of such policies and, if so, how children’s medical and legal needs might be better met. The issue should not be ignored and through ignorance accepted.
Ultimately, however, the inability to locate any service or agreed service to provide medical assistance to young [X] now, regrettably, compels the adjournment of the proceedings.
The purpose of the adjournment is, primarily, to allow the parties to continue their quest to locate a medical service from which [X] might receive necessary, medical treatment and, one would hope, for the parties to then agree with each other to engage [X] with that service, each participating and contributing to the cost.
The Independent Children’s Lawyer, with a view to providing some comfort and security to such medical service as [X] may engage with, has sought an order that the treatment [X] receives be “deemed” as family counselling and thus brought under the umbrella of Part II of the Family Law Act 1975 providing confidentiality and inadmissibility. That simply cannot be done.
Medical treatment is not family counselling as defined by sections 10B and 10C of the Act. It would be inappropriate and mischievous of the Court to seek to artificially “deem” a service to be something which it is not.
I have raised with the parties and the Independent Children’s Lawyer the possibility of an interim restraint upon issue of subpoena to any such service at least to the extent of giving oral evidence or being requested to write reports. In doing so I have made clear that such an order would not be made by me other than by consent and on an interim basis. It may ultimately be necessary, so as to determine issues relating to [X]’s best interests, to obtain and have access to medical information relating to or arising from his treatment. I am not prepared to fetter or restrain presentation by each party of their case or preclude the Court from receiving evidence which may be relevant and of assistance in determining [X]’s best interests on such a broad or “blanket” basis.
It would also be mischievous and inappropriate to effectively mislead any medical service, to lull them into a sense of false security, that their records cannot ever be accessed or obtained for the purpose of litigation.
As each of the parties and the Independent Children’s Lawyer has consented to a restraint upon the issue of subpoena to such service as [X] may engage with pending further order then I will make that order.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 24 November 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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