Legality of disclosure by Victorian psychiatrists of patient information to carers

Psychiatry, Psychology and Law

Volumn 14, Issue 1, 2007, Pages 147-167

  Clark, Karin ^a,b   North, Andrew ^a,b  

^a Allens Arthur Robinson Patent/TMA   (Australia)

^b NONE   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

CLINICAL PRACTICE; CONTRACT; HEALTH CARE; HEALTH PRACTITIONER; HUMAN; INTERPERSONAL COMMUNICATION; LAW ENFORCEMENT; LEGAL ASPECT; LEGAL LIABILITY; PATIENT CARE; PATIENT INFORMATION; PSYCHIATRIST; REVIEW;

EID: 34250007986     PISSN: 13218719     EISSN: None     Source Type: Journal    
DOI: 10.1375/pplt.14.1.147     Document Type: Review

References (57)

1. Most other jurisdictions also have confidentiality provisions in health-specific statutes, eg, the Health Administration Act 1982 (NSW), s 22, the Public Health Act 1991 (NSW), s 75, the Health Services Act 1991 (Qld), s 63, the Health Act 1937 (Qld), s 100E, the Public and Environmental Health Act 1987 (SA), s 42, and the South Australian Health Commission Act 1976 (SA), s 64. See also the NSW Health Records and Information Privacy Act 2002 and HPP 11 in Schedule 1 to that Act; and the ACT Health Records (Privacy and Access) Act 1997 and Principle 10 of Schedule 1 to that Act.
2. The discussion of 'relevant psychiatric services' in this article is informed by our discussions with personnel from the Office of the Chief Psychiatrist (which has responsibility under the MHA for the medical care and welfare of patients receiving treatment for mental illness).
3. A full list of proclaimed services and premises is available from the Office of the Chief Psychiatrist (Victoria).
4. A 'primary carer' is defined in s3 of the MHA as 'any person who is primarily responsible for providing support or care to a person other than wholly or substantially on a commercial basis'.
5. The Explanatory Memorandum to the Mental Health (Amendment) Bill 1995 (Vic) which inserted this provision does not provide much further explanation of this provision (see the note to Clause 57 of the Bill), nor do the Parliamentary debates on the introduction of this Bill (see Second Reading Speech, Victorian Hansard 5 October 1995, Legislative Assembly (Mr Gude) and Victorian Hansard 14 November 1995, Legislative Council (Mr Davidson)).
6. See Victorian Department of Human Services, Working together with families and carers: The Chief Psychiatrist's guidelines (Victorian Department of Human Services) at http://www.health.vic.gov.au/ mentalhealth/cpg/families.pdf viewed 18 October 2006.
7. See also the Privacy Kit for Private Sector Mental Health Service Providers (2004), which has been prepared by the Mental Health Privacy Coalition (consisting of the Australian Medical Association, the Mental Health Council of Australia, the Royal Australian and New Zealand College of Psychiatrists, and the Australian Private Hospitals Association), at http://www.spgpps.com.au/documents/spgpps/ publications/ Mental_Health_Privacy_Kit.pdf viewed 18 October 2006. This Kit is aimed at providers, consumers and carers and provides information about how mental health information should be handled under the Privacy Act 1988 (Cth).
8. As defined in section 6D of the Privacy Act 1988 (Cth).
9. Section 6D of the Privacy Act 1988 (Cth) expressly excludes State or Territory authorities and agencies from the definition of an 'organisation', therefore psychiatrists working within State hospitals are not subject to the Act.
10. See further the section entitled 'Consent to disclose' (pp. 159-162).
11. Incidentally, the psychiatrist would fall within the definition of 'carer' in NPP 2.4. This is a different use of the term 'carer' to that used within this article.
12. And, for the avoidance of doubt, are also not covered by the HSA - see section entitled 'Relevance of the Health Services Act 1988 (Vic)m section 141' (p. 149).
13. Section 85(3) of the HRA provides that a person is incapable of giving consent if he or she is 'incapable by reason of age, injury, disease, senility, illness, disability, physical impairment or mental disorder of ... (a) understanding the general nature and effect of giving the consent ... or (b) communicating the consent or refusal of consent... - despite the provision of reasonable assistance by another person.'
14. Note that the definition of 'immediate family member' as it applies here is wide, and covers a parent, child, sibling, spouse, domestic partner, member of the patient's household who is a relative of the patient and a person who has been nominated by the patient as a person to whom health information relating to the patient may be disclosed. See NPP 2.4 and section above entitled 'Operation of HPP2' (pp. 152-153).
15. As an aside, there is no similar exception under the HSA - see also 'Operation of HPP2' (pp. 152-153).
16. Note that HPP 2.2(c) also contains the additional words 'or permitted, whether expressly or impliedly,' after 'authorised'; however, this is probably not relevant for the present analysis.
17. Butterworths, Halsbury's Laws of Australia [280-4000 Confidentiality] ff.
18. Breen v Williams (1996) 186 CLR 71, 102-103 (Gaudron and McHugh JJ), 78-79 (Brennan CJ), 90-92 (Dawson and Toohey JJ), and 123-124 (Gummow J). See also obiter comments of Campbell J in Kadian v Richards [2004] NSWSC 382 at [47]-[48] (the decision has been appealed in Richards v Kadian [2005] NSWCA 328 but this issue is not discussed on appeal).
19. Butterworths, Halsbury's Laws of Australia [280-4025]; Sidaway v Board of Governors of Bethlehem Royal Hospital [1985] AC 871 at 904.
20. Butterworths, Halsbury's Laws of Australia [280-4030].
21. (2001) 185 ALR 1.
22. For further discussion, see eg, Stewart, D., 'Protecting privacy, property and possums: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd' (2002) 30 Federal Law Review 177;
23. Richardson, M., 'Whither breach of confidence: A right of privacy for Australia?' (2002) 26 Melbourne University Law Review 381;
24. Butler, D., 'A tort of invasion of privacy in Australia?' (2005) 29 Melbourne University Law Review 334; Batistatos v Roads and Traffic Authority of New South Wales (2006) 227 ALR 425 at [216] (per Callinan J).
25. Grosse v Purvis [2003] QDC 151 (16 June 2003). Damages of $178,000 were awarded to the plaintiff, the Mayor of Maroochy Shire Council, against the defendant, an acquaintance, who, it was alleged, had stalked and harassed the plaintiff for eight years. In holding that there is a tort of privacy, Senior Judge Skoien stated that he was taking a 'bold step ... as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy' (para [442]).
26. Kalaba v Commonwealth of Australia [2004] FCA 763. Justice Heerey of the Federal Court stated (at para [6]) that the weight of judicial authority weighed against Judge Skoien s introduction of a tort of privacy in Grosse v Purvis [2003] QDC 151 in Australia. Leave to appeal this interlocutory decision to the Full Court of the Federal Court was refused: Kalaba v Commonwealth of Australia [2004] FCAFC 326.
27. Giller v Procopets [2004] VSC 113 at [188].
28. Butterworths, Halsbury's Laws of Australia [280-4035]; numerous cases which discuss the doctrine of breach of confidence in the present context are cited in this paragraph of Halsbury's.
29. Butterworths, n 26 [280-4035]-[280-4070].
30. Information disclosed outside the therapeutic relationship may not necessarily have been communicated 'in confidence'. If it was not communicated in confidence, the equitable obligations related to the action for breach of confidence would not apply in relation to that particular information (however statutory provisions, such as the privacy and health records provisions and the HRA or HSA, may still apply).
31. For a discussion of the case law surrounding disclosure made in the 'public interest', see Mendelson D, 'The Concept of Medical Confidentiality in Australian and Jewish Law' (1997) 12 The Jewish Law Annual 217, 230-1; 236-41.
32. The research conducted on this issue involved searching the text of reported cases in the State Supreme Courts, the High Court of Australia and the Federal Court of Australia.
33. Austen v Civil Aviation Authority (1994) 50 FCR 272; Breen v Williams (1996) 186 CLR 71; Davidson v Ross & AG [1996] 3 NZLR 340; Duncan v Medical Practitioner's Disciplinary Committee [1986] 1 NZLR 513; Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454; P v D [2000] 2 NZLR 59; R v Department of Health; Ex parte Source Informatics Ltd [2000] 1 All ER 786; Rishmont Pty. Ltd. v Tweed City Medical Centre Pry Ltd [2002] 2 Qd R 222; W v Edgell [1990] 1 All ER 835; X v Y [1988] 2 All ER 648; Harvey v PD [2004] NSWCA 97; and Richards v Kadian [2005] NSWCA 328.
34. See n 31. However, note that disclosure to others close to a patient has been considered. See, eg, Harvey v PD [2004] NSWCA 97 and discussion at n 39 below.
35. See Paterson M and Mulligan E, 'Disclosing Health Information Breaches of Confidence, Privacy and the Notion of the "Treating Team"' (2003) 10 Journal of Law and Medicine 460, 464-7 and (particularly) fn 29 and associated text.
36. See section entitled 'Consent to disclose' (pp. 159-161, and particularly 'Good clinical practice - some examples' at pp. 162-163).
37. There appears to be little judicial commentary on the interaction between the statutory schemes and the equitable obligations, however, there is some obiter commentary in Austen v Civil Aviation Authority (1994) 50 FCR 272 and Kadian v Richards [2004] NSWSC 382 (an appeal of this decision was dismissed in Richards v Kadian [2005] NSWCA 328, so the commentary is still useful).
38. See, for example, Mendelson, above n 29, 236-41.
39. While it is beyond the scope of this article to discuss the specific law relating to this duty, a detailed discussion of the legal reasoning and supporting case law can be found in Jones M A, 'Saving the Patient from Himself (1990) 6 Professional Negligence 107.
40. See also The Law Book Company, The Laws of Australia s 27.2 para [24] (at 29 January 2003).
41. See Jones, above n 37.
42. One of the few instances in which this question has been considered is the case of Harvey v PD [2004] NSWCA 97, however the decision was not conclusive as to whether, in the circumstances of that particular case, the doctor had a duty to 'breach' confidence. This case concerned a situation where a doctor failed to inform the plaintiff that her husband was HIV positive after having received results of an HIV test. Both the plaintiff and her husband were patients of the defendant clinic. In this case, damages were awarded to the plaintiff on the basis that the doctor had not followed proper procedures in notifying the relevant authorities (as required by laws specifically dealing with HIV test results). There was disagreement among the members of the Court of Appeal regarding whether the doctor had a duty to 'breach' confidence and inform the plaintiff. See in particular the judgments of Spigelman CJ and Ipp JA.
43. Jones, above n 37 at 108.
44. This is, in our submission, not only good practice from a legal point of view, but good clinical practice as well. See the references in n 34 above to other sections of this article.
45. See n 6.
46. But see section entitled 'Equity - breach of confidence' (at pp. 154-155 of this article).
47. Annotation 4.5 to The RANZCP Code of Ethics (revised October 2004 at http://www.ranzcp.org/ pdffiles/publications/Code%20of%20Ethics.pdf viewed 6 December 2006). It is informative to note that the previous version of the Code of Ethics (revised in 1988) noted in annotation 4.5 that 'Confidentiality cannot always be absolute. A careful balance must be maintained between preserving confidentiality and the need to breach it rarely in order to promote the patient's best interests and/or the safety and welfare of other persons' (emphasis added), which indicates an increased recognition of the bounds of confidentiality within ethics and the law.
48. The section entitled 'Consent to disclose' (pp. 159-162) discusses some methods of obtaining consent to specific disclosure.
49. See also the Victorian Chief Psychiatrist's Guideline, Victorian Department of Human Services, Working together with families and carers: The Chief Psychiatrist's guidelines, n 6 above.
50. Some useful guidelines on compliance with the privacy and health records schemes, with a focus on complying with the Commonwealth Privacy Act 1988 in particular, are contained in the Privacy Kit for Private Sector Mental Health Service Providers (2004), see n 7 above.
51. Note that the definition of 'immediate family member' as it applies here is wide, and covers a parent, child, sibling, spouse, domestic partner, member of the patient's household who is a relative of the patient and a person who has been nominated by the patient as a person to whom health information relating to the patient may be disclosed. See NPP 2.4 and section entitled 'Operation of HPP 2' (at pp. 152-153).
52. See further 'Incapacity of the patient in relation to obtaining consent to disclose' (at pp. 159-162) for a discussion of the meaning of 'incapable' in this context.
53. See Paterson and Mulligan, above n 33 at 469.
54. Although some practitioners may find it convenient also to ask the patient to signify their consent to (or sign) a collection statement.
55. See n 6 above
56. The examples given here are based on clinical practice in the context of obtaining consent to disclose information. We make no comment on the underlying clinical decisions and opinions, given our backgrounds are legal, rather than medical.
57. There is no general legal rule compelling mental health professionals to pass on to a patient information that a patient's carer might tell them.