A subpoena for therapy notes is a court order, not a request. Australian law gives clinical records no blanket privilege, so they can be compelled. You must comply unless you were served incorrectly, were not given conduct money, or you object on recognised grounds, including the protected confidence provisions that commenced on 10 June 2025.
Can therapy notes be subpoenaed in Australia?
Yes. Unlike lawyer and client communications, which attract legal professional privilege, notes made by a psychologist, counsellor or social worker have no equivalent general protection in Australian law. A party to a proceeding can ask a court to issue a subpoena compelling you to produce your file, attend to give evidence, or both.
That does not mean every subpoena must be answered in full. The Federal Circuit and Family Court of Australia sets out the limited situations where a named person is not required to comply: the subpoena was not served in the manner required by the Family Law Rules 2021, the court has already ordered that the material is a protected confidence (or you intend to object on that basis), or conduct money was not provided.
Ignoring a subpoena is the one option that is never available. The Court may issue a warrant for your arrest, order you to pay the costs caused by your non-compliance, and find you guilty of contempt of court.
What are the three types of subpoena?
Knowing which one you have received determines what you actually need to do.
- Subpoena for production. You produce the documents listed in the schedule by the date on the cover sheet. You do not attend court.
- Subpoena to give evidence. You attend court on the date specified and give oral evidence.
- Subpoena for production and to give evidence. Both of the above.
A subpoena for production and to give evidence should not be sought where producing the documents alone would be sufficient, so it is worth checking whether the issuing party has over-reached.
What should you do in the first 48 hours?
- Diarise the date of production. It is on the cover sheet, and it is the deadline that matters.
- Read the schedule word for word. The schedule defines the scope. A request for "all documents relating to the client" is broader than a request for session notes between two dates, and breadth is itself a ground of objection.
- Notify your client, unless a court order or legislation prevents it. They may have grounds to object that you do not, and they may want legal advice quickly.
- Contact your professional indemnity insurer or association. Most provide a legal advice line, and this is exactly what it exists for.
- Do not alter, add to, or tidy up the file. Retrospectively editing subpoenaed records is a serious professional and legal risk. If a late entry is genuinely needed, date it as a late entry.
- Assemble the file and check what is actually in it, including any material you would not want read aloud, such as third-party information about people who are not parties to the proceeding.
What is a protected confidence, and why does it matter now?
This is the most significant change for Australian clinicians in years. From 10 June 2025, the Family Law Act allows a court to protect sensitive information in family law proceedings.
Section 102BA defines a protected confidence as a communication made in the course of a relationship in which one person (the confidant) is acting in a professional capacity to provide a professional service to another (the protected confider), where the confidant is under an obligation not to disclose it. A professional service means a health service, or a specialist sexual assault or family violence service, so ordinary therapy sessions fall squarely inside the definition.
The court can order that the information not be disclosed to another party, that it cannot be subpoenaed at all, that it cannot be inspected or copied, or that it cannot be used as evidence. The test is whether the likely harm of disclosure outweighs the benefit to the court of using the information.
Two points are routinely missed by practitioners. First, you can apply yourself: the confidant is expressly listed among the people who can ask the court to protect the information. Second, the protection is not automatic. Someone has to raise it, and explain the harm.
Outside family law, state-based protections exist for a narrower category of records. In criminal and domestic violence proceedings, the sexual assault communications privilege restricts the release of counselling communications, and Legal Aid NSW runs a dedicated Sexual Assault Communications Privilege Service that assists both complainants and the professionals holding the records. The Subpoena Survival Guide is the plain-language companion resource.
On what grounds can you object?
The Court lists the usual bases for objecting to production: the documents are irrelevant, they are privileged (for example, documents created through a lawyer and client relationship), the terms of the subpoena are too broad, or the material would disclose a protected confidence and the protected confider does not consent.
Objecting means applying to the Court to set the subpoena aside in whole or in part. It does not mean quietly withholding pages. If you object to part of a schedule only, say so precisely and produce the rest.
Note the second layer as well: even where documents are produced without objection, a party can apply for an order that a document not be inspected or copied. Medical records are already in the category that may be inspected but not copied where the material is not otherwise restricted.
What happens once you produce the documents?
Produce them to the Court, not to the person who asked for the subpoena. Family law registries have a dedicated subpoena email address, and electronic production is preferred, with the file number and party surnames in the subject line.
Unless the subpoena specifically requires originals, a copy is sufficient. When producing, you can tell the Court that the documents need not be returned and may be destroyed. Otherwise the Court must return them to you between 28 and 42 days after the order finally determining the matter.
If you are not a party and complying will cause substantial loss or expense, you can apply in writing for the issuing party to cover it, but you must give notice with an estimate before you comply. Conduct money for attendance must be at least $25, which rarely reflects the real cost of a clinician's day, so the notice provision is worth using.
How should you write notes so they hold up?
The best time to prepare for a subpoena is years before one arrives. Notes that survive scrutiny share the same features:
- Contemporaneous. Written at the time or as soon as practicable afterwards, so the record is not a reconstruction.
- Factual and observable. Record what was said and observed, and label clinical opinion as opinion. The distinction between a working record and a formal clinical record is worth understanding, and we cover it in psychotherapy notes versus clinical progress notes.
- Free of gratuitous third-party detail. Information about people who are not your client is the material most likely to cause harm if disclosed.
- Complete on the things that matter. Risk is the clearest example, and documenting a suicide risk assessment properly protects both the client and you.
- Retained for the required period. Retention obligations vary by state and by client age, as set out in our guide to how long to keep clinical records in Australia.
Multi-client work needs extra care, because a single shared note can expose one party's disclosures to another. Our guides to couples therapy notes and family therapy notes set out how to separate records so a subpoena in one person's matter does not sweep up everyone else's material.
PractaLuma is AI-native practice management software for Australian mental-health practices, and this is one place where good software genuinely reduces legal exposure: timestamped entries, a clear audit trail, and per-client separation of records. See how clinical notes and client records work, or review pricing.
Frequently asked questions
Can I refuse to produce notes because my client did not consent? No. Consent is not the trigger for a subpoena, and a lack of consent is not by itself a ground to refuse. It is, however, directly relevant to a protected confidence objection, where the protected confider not consenting to disclosure is part of the recognised basis for objecting.
Do I send the documents to the lawyer who requested them? No. Documents are produced to the Court. Sending the file directly to the issuing party bypasses the objection and inspection process entirely.
Can I charge for the time it takes to comply? Potentially. If you are not a party and you will incur substantial loss or expense, you can apply for the issuing party to pay it, but you must give written notice with an estimate before complying. Any claim is against the issuing party, not the Court.
Are couples or family therapy notes treated differently? The subpoena rules are the same, but the practical risk is higher because one file may contain confidential disclosures from several people. Separate records per client, and raise the issue early if the schedule sweeps in a non-party's material.
What if the subpoena comes from a state court, not the family law courts? The protected confidence provisions in the Family Law Act apply to family law proceedings. State and territory courts have their own subpoena rules and their own confidentiality protections, including the sexual assault communications privilege in criminal matters. Get advice specific to the jurisdiction named on the cover sheet.
This article is general information for practitioners, not legal advice. When a subpoena arrives, speak to your indemnity insurer or a lawyer about your specific circumstances.