If you are involved in a family law, estate or family provision dispute, you may need to provide your solicitor with sensitive personal information. This can include medical records, psychologist or psychiatrist clinical notes, reports and other documents containing highly private information.

It is understandable that you may want to remove information that you consider irrelevant, embarrassing or particularly sensitive before the document is used in court.

But can you simply redact those parts yourself?

Not necessarily. Before changing, withholding or filing a document, it is important to understand the difference between legal professional privilege, confidentiality and the rules governing evidence.

What is legal professional privilege?

Legal professional privilege, referred to in the Evidence Act 1995 (NSW) as client legal privilege, can protect certain confidential communications and documents from being disclosed or used as evidence.

Broadly, section 118 concerns confidential communications and documents made or prepared for the dominant purpose of a lawyer providing legal advice. Section 119 concerns confidential communications and documents made or prepared for the dominant purpose of a lawyer providing legal services relating to existing or anticipated litigation.

The privilege belongs to the client. It is therefore important not to assume that everything which passes through a solicitor’s office is automatically privileged.

For example, a medical report prepared by a doctor before you ever contacted your solicitor will not ordinarily become privileged merely because you subsequently give the report to your solicitor. The purpose for which the document was originally created can be critical.

The same issue can arise with psychologist or psychiatrist clinical notes.

What if I want to redact my medical or psychological records?

Suppose you provide your solicitor with medical records or psychiatric clinical notes because you believe they contain evidence relevant to your case.

You may notice that the documents also contain information about other matters which you believe have nothing to do with your dispute.

You might then ask your solicitor to annex only a redacted version of the document to your affidavit.

That does not mean you are entitled to decide unilaterally what should be removed.

A solicitor must consider the evidence as a whole and the obligations owed to the client, the court and other parties. Whether particular information can properly be withheld or redacted may depend on matters including relevance, privilege, confidentiality, the purpose for which the document was created and the procedural requirements applying to the particular proceeding.

There may also be circumstances where the appropriate protection is not legal professional privilege at all.

Medical confidentiality is not the same as legal professional privilege

People often assume that because information was provided confidentially to a doctor, psychologist or psychiatrist, it cannot be disclosed in court.

That is too broad.

The Evidence Act 1995 (NSW) contains provisions concerning a protected confidence. In appropriate circumstances, a court may restrict the admission of evidence that would disclose a protected confidence. The legislation provides for ancillary suppression orders.

The existence and application of those protections depends on the circumstances. They should not be confused with client legal privilege between a solicitor and client.

When can legal professional privilege be lost?

Legal professional privilege is important, but it is not absolute.

Under Part 3.10 of the Evidence Act 1995 (NSW), there are circumstances in which privilege can be lost or does not prevent evidence being adduced. These include disclosures that are inconsistent with maintaining the privilege, circumstances involving joint clients, misconduct, and circumstances where related communications or documents are reasonably necessary to properly understand material from which privilege has been lost.

One particularly important point is waiver.

If privileged information is voluntarily disclosed, the question may become whether the client has acted inconsistently with maintaining the privilege. The circumstances of the disclosure matter. The NSW Civil Trials Bench Book notes that voluntarily putting privileged material before a court can be inconsistent with maintaining the privilege.

That is why care should be taken before putting documents into an affidavit or annexing them to evidence.

Do not redact first and ask questions later

If you have been asked to provide your solicitor with medical records, psychologist or psychiatrist clinical notes, or other sensitive documents, it is generally better to provide them to your solicitor with an explanation of your concerns before making your own redactions.

Your solicitor can then consider whether the material is relevant, whether privilege or another protection may apply, whether redaction is appropriate, and whether another form of protection should be sought from the court.

In some circumstances, the appropriate course may involve an application for a suppression or non-publication order rather than simply removing information from a document. NSW courts have statutory powers to make such orders in appropriate circumstances.

The important point is that privacy concerns should not be confused with a legal right to redact evidence.

If you are unsure whether a document is privileged or whether information can be redacted, obtain legal advice before providing or filing it.

Need advice about sensitive documents in your case?

If you are involved in a legal dispute and are concerned about providing sensitive medical or psychological records to your solicitor, contact us for advice about the issues that may arise before documents are used as evidence.

Disclaimer: This article provides general information only and is not legal advice. The application of legal professional privilege, confidentiality and evidentiary rules depends on the circumstances of each matter.