Record / Legal

Records Requests

You may have people request documents related to DFV for:

• Subpoenas
• Information sharing through
  • Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998
  • Part 13A Crimes (Domestic and Personal Violence) Act 2007
• Friendly request on behalf of the patient, or another lawyer

Subpoena's

Before providing any information, ensure that the person is not the perpetrator or someone attempting to access information on behalf of the perpetrator.

It is advised that you receive a Chapter 16A or Part 13A information request in writing, detailing the information required, and for what purpose, before responding.

You can challenge a subpoena for a variety of reasons including if:

• It is not valid
• You didn’t receive enough notice
• There was no conduct money
• The information requested is irrelevant to proceedings
• The subpoena is too broad and is being used to search for unknown information
• The requested records are privileged such as:
  • Being related to sexual assault
  • Sitting within professional confidential relationship privilege (Women's Legal Service NSW and Legal Aid NSW, 2016).

Before responding to a subpoena or information request we advise you to:

• Contact the Women’s Legal Service NSW for legal advice,
• Get consent from your patient,
• Inform the patient exactly what information will be shared.

For more information about subpoenas, see the Subpoena Survival Guide below.

Referral Without Consent

Communications and disclosures by a patient to a practitioner are bound by confidentiality and privacy legislation. However, there are instances in which a practitioner may be required to break confidentiality.

According to Part 13A of the Crimes (Domestic and Personal Violence) Act 2007, patient consent is not required for information sharing if the practitioner believes the person is at serious threat and that the information sharing is necessary to lessen the threat (Crimes (Domestic and Personal Violence) Act 2007 No 80, 2022).

If you are unsure if you should refer without consent, we recommend using the DVSAT or contacting your DFV Local Link, Domestic Violence Line (Ph: 1800 656 463), or 1800RESPECT (Ph: 1800 737 732) for additional support.

If a person discloses that they have been the victim of DFV, you do not owe a duty of confidentiality to the alleged perpetrator. As a result, you do not need the alleged perpetrator’s consent to share information with other services.

Asking for the alleged perpetrator’s consent to share information with other services may increase the threat to your patient.

Children or Young People at Risk of Harm

Where children and/or young people are at risk of serious harm, you must complete a mandatory report to Child Protection. To ensure the responsibility sits with the person using violence, please ensure you complete a strengths-based notification.

If you are unsure if you need to complete a mandatory report to Child Protection, complete the NSW Mandatory Reporter Guide for clarification.

Where it is safe to do so, inform the victim/survivor of your requirements as a mandatory reporter, and support their participation in the reporting process.

When making a mandatory report, ensure it is strengths-based with a structural lens by including:

• Actions of the victim/survivor to reduce risk of harm to the child/ren
• Details of the safety plan as it relates to the child/ren
• Any referrals that have been made
• Services the family is currently accessing
• That you have discussed with the victim/survivor the impacts of DFV on child/ren
  • And whether the victim/survivor understands these impacts

Coding in clinical software

Coding is the use of a covert code when patients present with DFV. This code allows you and your practice to:

• Track the number of presentations of DFV in your practice
• Advise colleagues about the presence of DFV when seeing an unfamiliar patient
• Ensure non-clinical staff are aware of additional safety and privacy needs of patients impacted by DFV
• More easily locate DFV related information if needed for legal purposes

The covert code should be used at every presentation related to DFV.

Note Taking

When writing notes about confirmed or suspected DFV, it is important to include:

• Photographs of injuries
• The reason that you believe the presentation is DFV related
  • That could be due to an explicit disclosure, or because the pattern of injury indicates a non-accidental cause
• The level of threat toward the patient, and the reason for this assessment
  • This could include DVSAT outcomes, DFV Primary Care Action Plan risk assessment outcomes, or your own professional judgement
• Patient’s assessment of their safety, the safety of their children, as well as any protective activities taken.

When writing notes, it is important to:

• Clearly differentiate between:
  • What the patient said
  • What is your summary
  • What is your evaluation
  • What you observed.
• Use direct quotes from the patient where possible and identify this using quotation marks.
• Use plain language and avoid using abbreviations, jargon, and symbols.

For more information about record keeping, contact Women’s Legal Service NSW.

Physical injuries requiring investigation and treatment

Refer your patient to the local emergency department with a referral detailing the nature of the assault, that you know or suspect that the patient is a victim of DFV and requesting relevant investigation and treatment. If possible, call the emergency department to advise them that the patient will be attending.

Older People

Where an older person is reported to have experienced abuse in a Commonwealth-funded Residential Aged Care setting, it is mandatory to make a report to the Ageing and Disability Abuse Helpline or phone 1800 628 221.

References

Women's Legal Service NSW and Legal Aid NSW. (2016). Subpoena survival guide: What to do when a court wants confidential client information in NSW.