Police search warrants for health professionals records

In X v Commissioner of Police [2012] NSWSC 930, recently posted on the NSW Caselaw site, the catchwords recite that a complaint had been made to the Police about offences said to have been committed by X.  Investigations followed and X was later told that the Police would not further investigate the complaint.

X later attended a psychotherapist for counselling and the Police subsequently obtained a search warrant for the treatment records and charged X with an offence.

This decision is of interest for its consideration of the relevance of professional confidential relationship privilege under ss.126A-126B Evidence Act 1995. At [47]:

Unlike legal professional privilege, there is no common law privilege attaching to communications between patient and therapist: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at 698-700 [85]-[98]; Wilson v State of New South Wales [2003] NSWSC 805 at [18]; Director-General Department of Community Services v D [2006] NSWSC 827; 66 NSWLR 582 at 590 [23]. The mechanism contained in s.126A-126B requires a court, in the context of a decision as to whether evidence ought be admitted, to undertake a balancing exercise in the context of the hearing then underway.

X made an application for a permanent restraining order preventing police from obtaining search warrants to obtain information from other treating health professionals consulted by X. The Court declined that application, commenting at [68]:

I have real concerns that this Court may make an order permanently restraining police officers from applying for a search warrant with respect to a particular class of persons and a nominated area of alleged offences. The Plaintiff has cited no authority in support of the making of an order of this type. The inherent power and the jurisdiction conferred by s.23 Supreme Court Act 1970 are to be exercised only as necessary for the administration of justice: Reid v Howard [1995] HCA 40; 184 CLR 1 at 17