MENTAL HEALTH LAW CENTRE (WA) Inc.

Transcription

1 MENTAL HEALTH LAW CENTRE (WA) Inc. ABN November 2011 Privacy and FOI Policy Branch Department of the Prime Minister and Cabinet 1 National Circuit BARTON ACT 2600 Sent via privacycauseofaction@pmc.gov.au Mental Health Law Centre (WA) Inc. Submissions A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy The Mental Health Law Centre (WA) Inc. (the Centre) is an independent nongovernment community organisation. It is incorporated under the Associations Incorporation Act 1987 (WA) as it is a community legal centre specialising in mental health law. The Centre was established in 1997 and commenced operating at the time that the Mental Health Act 1996 was proclaimed (in November 1997). The Centre is accredited by and a member of the National Association of Community Legal Centres. Statement of Purpose The Centre works from the principles of: The empowerment of mental health consumers and the involvement of consumers and the community in the human rights, welfare, care and treatment of people with a mental illness. Promoting justice for consumers through legal advice, advocacy, education, law reform, lobbying and media exposure. Underlying Principles The Centre: Promotes consumer choice. Upholds the human rights of people with a mental illness. Redress wrongs suffered by people with a mental illness. Objects The Objects of the Centre include promotion of the legal and social rights and responsibilities of people with a mental illness by undertaking the following: a) Providing legal advice and legal services, including representation before tribunals and courts; b) Providing information and referral services to people with a mental illness; c) Providing legal education; 1

2 d) Promoting and understanding of the legal and mental health systems in the community at large; e) Providing community education, training and resources on mental health and the law to groups, professionals, workers and individuals; and f) Evaluating and monitoring existing laws, legal and mental health service standards, policies and procedures; and working towards reform in areas of relevance to people with a mental illness and promote change where necessary The Centre has reviewed the Issues Paper in regards to a Commonwealth statutory cause of action for serious invasion of privacy and respectfully makes the following submissions. SUBMISSION Currently in Australia there is no statutory action for invasion of privacy. There is also little common law in relation to invasion of privacy. In 1937, the High Court of Australia found that a breach of privacy would not be recognised in Australian law. 1 Since this case in 1937, the laws in relation to breach of privacy in common law have remained undeveloped. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd the High Court indicated that the decision in Victoria Park does not stand in the path of the development of a cause of action for invasion of privacy. 2 However the High Court of Australia did not determine whether a cause of action exists, nor has it articulated what the scope of such a cause of action might be. Only two other cases since the Lenah Game Meats case have recognised a person s right to an action for invasion of privacy Grosse v Purvis and Doe v Australian Broadcasting Corporation. 3 The European Convention of Human Rights (ENCHR) to which Australia is not a signatory does contain a right to privacy. Article 8 of the ECHR provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder 1 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor; in Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy Commonwealth of Australia Department of the Prime Minister and Cabinet, September 2011 p13. 2 Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy Commonwealth of Australia Department of the Prime Minister and Cabinet, September 2011 p13 3 Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy Commonwealth of Australia Department of the Prime Minister and Cabinet, September 2011 p13 2

3 and crime, for the protection of health and morals, or for the protection of the rights and freedoms of others. 4 Article 8 of ECHR provides the exception to privacy for the protection of health and morals. The Centre submits that although Australia is not a signatory to the ECHR, the principles established regarding privacy in Article 8 should be considered when reforming Australia s privacy laws. In Australia, the Australian Capital Territory and Victoria have introduced legislation for a Bill of Rights recognising a right to privacy and repudiation. The Australian Law Reform Commission states that there are gaps in the protection provided to individuals and their private lives. These gaps arise because the Commonwealth Privacy Act focuses on information, data privacy and protection, rather than looking at privacy protection in a broader sense. 5 Article 17 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party, gives individuals the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. 6 That is, privacy as a basic human right is recognised by the ICCPR Convention. Privacy in Relation to Mental Health Consumers and Carers Though privacy is a basic human right recognised by the ICCPR, there is a fine line between balancing a mental health consumer s right to privacy and their carer s need for information. It is important that carers are kept informed because they are a vital part of support structures for mental health consumers. If privacy and confidentiality laws are enacted, then consideration must first be given to ensure that those that care for mental health consumers are kept informed of the issues faced by the consumer, and included in decisions about the treatment and discharge planning. The National Mental Health Consumer & Carer Forum (NMHCCF) released an issues paper 7, which detailed the problems faced by carers of mental health consumers in relation to privacy and confidentiality. It details the hurdles faced by carers for mental health consumers regarding access to important information about their loved ones from the treating clinician. The NMHCCF while accepting that the privacy of a consumer is a basic human right, they also state that the right to privacy, 4 Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy Commonwealth of Australia Department of the Prime Minister and Cabinet, September 2011 p16 5 Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy Commonwealth of Australia Department of the Prime Minister and Cabinet, September 2011 p 24 6 Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy Commonwealth of Australia Department of the Prime Minister and Cabinet, September 2011 p 25 7 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper,

4 should be balanced with their nominated carer s need to give and receive relevant information to their caring role. 8 Privacy and confidentiality are enforced by legislation and underpinned by professional codes of conduct to protect health information records from unauthorised disclosure. 9 It has been found that privacy and confidentiality are sometimes used as a way to exclude consumers and carers from gaining information from clinicians. 10 This has posed substantial problems for carers and family members of consumers, who are not informed adequately about the consumer s treatment and side effects, patient transfers, and/or when a patient is released from involuntary civil or forensic detention. This has often caused consumers to face their recovery period out of hospital alone and consequently their recovery may be hindered or they may suffer relapse, especially in the all too common circumstance of premature sudden discharge necessitated by bed number pressures. The Mental Health Law Centre (WA) Inc. (the Centre) submits that any changes to privacy laws must take into account the role of the carer of a person with a mental illness, and how some patient information will need to be shared with them so they are able to support and care for the consumer, and take part in their treatment and discharge planning. Privacy and confidentiality reform is a matter of great concern to mental health consumers, carers and the Centre, on whose behalf this submission is made. Issues arise when clinicians are either unaware or unsure as to whether or not they should share important information about a consumer s wellbeing to their nominated carer. Specific identification of carers is essential in situations when their role is likely to be ongoing over an extended period of time, such as when they are caring for a person with a long term mental illness. 11 In order for the carer to provide the support and care the consumer requires, there needs to be a balance between the consumer s rights to privacy and the carer s need for information. 12 The NMHCCF states, It is important that carers are kept in the loop given that they are such a vital part of support structures for consumers and contribute valuable knowledge and experience to assist in the consumer s treatment. 13 While some information should be shared with carers, it is highly important that a balance of shared information is found. As stated in Article 17 of the ICCPR 8 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p7. 9 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p7. 11 Private Mental Health Consumer Care Network (Australia, Identifying the Carer Project, Final Report and Recommendations for the Commonwealth Department of Health and Ageing, p2. 12 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p11. 4

5 consumer privacy is a basic human right. It is also stated in Article 12 of the United Nations Declaration of Human Rights that: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Therefore, disclosing personal information without consumer consent may be considered contravening consumers rightful access to the information protection that is legitimately theirs. The MHLC submits that any legislative reform or policy guidelines must ensure that these rights are acknowledged and respected. The NMHCCF states that the privacy of consumers must be upheld, where possible, to the fullest extent possible, for the purposes of their treatment and wellbeing. 14 If a treatment decision is to be made that is going to affect the role of the care provider, then it should be essential that the views and needs of carers are taken into account, 15 having first provided sufficient information to the carer to empower the carer to reach an informed opinion. Issues may arise for consumers where they have not consented, or do not have the capacity to consent to the carer receiving this information. In situations such as these the clinician must decide what information, if any, is shared with the carer. 16 This can lead to the carer not being able to adequately support the consumer. Though each consumer care situation will be unique, any privacy reforms will need to address and take into account the issues surrounding mental health consumers, especially involuntary patients, and the release of information to their nominated carers. The NMHCCF issues paper highlights the need for a cultural shift towards a tripartite approach to treatment, which can be achieved if several changes occur at the service level such as 17 : 1. Staff education and support (this includes all staff members at the service level); 2. Increased communication about information sharing between consumers, carers and clinicians; and 3. Written agreements about information management. This tripartite model can be addressed by legislative measures and reform, policy guidelines and training. The NMHCCF states that a tripartite relationship is an ideal system to ensure that consumers, carers and clinicians are working 14 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p14. 5

6 together to ensure positive and supportive outcomes for the mental health consumer. 18 Importantly, the Victorian Mental Health Act 1986, authorises service providers to share information about a consumer, if the information is reasonably required for the on-going care of the person, and the, guardian, family or primary carer or family member will be involved in the care. 19 However the Act authorises but does not require that the information is disclosed to family or carers. This is insufficient protection of what should be carer s rights. International Framework It is important to consider how other jurisdictions deal with sharing of mental health information with carers in order to ensure that carers are provided with adequate information so that they are able to assist mental health consumers. Internationally, two documents address privacy of information pertaining to mental health patients, and they inform different legislative and policy measures in Australia. Principle 6 of the United Nations Principals for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care of 1991 (the Mental Illness Principles) has been used to inform the privacy section of Australia s National Standards for Mental Health Services. 20 Principle 6 provides that: The right of confidentiality of information concerning all persons to whom the present Principles apply shall be respected. 21 The United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), signed by Australia in 2007 and effective as of 2008 supersedes the Mental Illness Principles to the extent that there is a conflict between the two instruments. 22 Article 22, clause 3 of the UN CRDP provides that 23 : 18 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p Section 120A: National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p United Nations Principals for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p18. 6

7 State Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others. The UN CRPD arguably requires the Australian State and Federal Governments to implement legally enforceable directives. 1. New Zealand Section 7A of the New Zealand Mental Health (Compulsory Assessment and Treatment) Act 1997 (NZ MHA) provides, in summary that: 1. A practitioner must consult the family or whanau of the proposed patient or patient unless the practitioner has reasonable grounds for deciding that consultation: a. is not reasonably practicable; or b. is not in the best interests of the proposed patient or patient. 2. In deciding whether or not consultation with the family or whanau is in the best interests of a proposed patient or patient, the practitioner must consult the proposed patient or patient. Section 2 of the NZ MHA provides that the principal caregiver, in relation to any patient, means the friend of the patient or the member of the patient's family group or whanau who is most evidently and directly concerned with the oversight of the patient's care and welfare. This legislative change was initiated in part by the Privacy Commissioner who expressed frustration at refusal of some hospitals to adopt sensible policies on sharing information with the carers of their patients. 24 The New Zealand Ministry of Health responded with detailed guidance which supports close cooperation with families and sharing information, planning, decision making, and providing support and education when necessary. 25 The policies uphold consumer consent. However, the New Zealand Privacy Act 1993 and the Health Information Privacy Code 1984 do not interfere with most aspects of working with families. There are strict provisions to protect the consumer s confidentiality when the involvement of family could pose a serious health risk to the consumer National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p19. 7

8 2. United Kingdom The legislation and policy framework in the UK are directed specifically towards carers. The two relevant legislative documents are the: 1. Carers (Recognition and Services) Act 1995; and 2. Carers (Equal Opportunities) Act The legislation priorities service autonomy and the right to be consulted about information sharing with carers. 27 Importantly, there has been some legislative effort to more fully support the needs of carers. 3. Scotland The mental health system in Scotland has gone from one characterised by outdated legislation, poor communication and a very limited policy framework to one which has been held out as exemplary by the World Health Organisation, the European Commission and other international actors. 28 Professor McSherry has commented that the Mental Health (Care and Treatment) (Scotland) Act 2003 (Scottish Act) provides a good starting point for an analysis of what should be included in civil mental health laws. 29 Named Person A named person has certain rights under the Scottish Act in respect of the patient and acts in an advocacy role on the patient s behalf. Individuals with mental illnesses can nominate a family member or friend as a named person but, where no appointment has been made, the Scottish Act automatically deems the primary carer to be the named person. Section 250 of the Scottish Act provides for the nomination of a named person by the patient or nominator. Section 1 of the Scottish Act provides that when discharging a function under the Act in relation to a patient that has attained 18 years of age, a person shall have regard to the views of a patient s named person and any carer of the patient, in so far as they are relevant to the function being discharged. 27 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p Smith-Merry, Jennifer: Working paper: Transformation of a mental health system the case of Scotland and its lessons for Australia Wolstenholme, Michelle, Current Trends in Mental Health Legislation Mental Health Commission, Government of Western Australia, page 2. 8

9 Section 38 of the Scottish Act provides that where a patient is detained in hospital under authority of an emergency detention certificate, the hospital manager shall, within a certain timeframe, give notice of the granting of the certificate to the patients nearest relative or the named person if the identity of the named person if known by the managers. Section 44 of the Scottish Act provides that before granting a short-term detention certificate, the approved medical practitioner shall consult the patient s named person about the proposed grant of the certificate and shall have regard to any views expressed by that person, unless it is impracticable to do so. Section 46 of the Scottish Act provides that where a patient is detained in hospital under authority of a short-term detention certificate, the mangers of the hospital shall, as soon as practicable after the production to them of the short-term detention certificate, give notice to the patient s named person. Section 48 of the Scottish Act provides that a medical practitioner who grants an extension of detention certificate shall, within a certain time frame, give notice to the named person of: a) the granting of the certificate; b) the reasons for granting the certificate; and c) whether consent of a mental health officer was obtained. Section 49 of the Scottish Act provides that where a responsible medical officer decides to revoke a detention certificate, the responsible medical officer shall, as soon as practicable after revoking a certificate, give notice of its revocation to the patient s named person. Section 50 of the Scottish Act provides that where the Mental Health Tribunal (MHT) is determining an application for revocation of a short-term detention or extension certificate, the MHT shall afford the patient s named person the opportunity to make representations or produce evidence. Section 52 of the Scottish Act provides that where the Commission revokes a short-term detention certificate, it shall, as soon as practicable after doing so, give notice of the revocation to the patient s named person. Section 54 of the Scottish Act provides that where a responsible medical officer revokes a certificate authorising detention of a patient for 28 days, the responsible medical officer shall, as soon as practicable after doing so, give notice to the patient s named person. Section 59 of the Scottish Act provides that if a Mental Health Officer (MHO) makes an application for a compulsory treatment order, he or she must take such steps as are reasonably practicable to ascertain the name and address of the patient s named person. 9

10 Section 60 of the Scottish Act provides that if an MHO makes an application for a compulsory treatment order for a patient, he or she must give notice that the application is made to the named person. Section 64 of the Scottish Act provides that where the MHT is determining an application for a compulsory treatment order, the tribunal shall afford the patient s named person the opportunity of making representations of producing evidence. Section 74 of the Scottish Act provides that where a responsible medical officer reviews an interim compulsory treatment order, or the commission revokes an interim compulsory treatment order, notice of these decisions shall be given to the patient s named person. Section 84 of the Scottish Act provides that where a responsible medical officer or the Commission revoke a compulsory treatment order, the body concerned shall send a notice of the determination and a statement of reasons for it to the patient s named person. Section 87 of the Scottish Act provides that where a patient s responsible medical officer makes a determination to extend a compulsory treatment order, the responsible medical officer must send a copy of the record required and give notice of the determination to the patient s named person. Section 90 of the Scottish Act provides that where the patient s responsible medical office has made an application for variation or extension of a compulsory treatment order, the responsible medical officer shall, as soon as practicable after the duty to make the application arises, give notice that the application is to be made to the patient s named person. Section 124 of the Scottish Act provides that where a patient is being transferred to another facility, notice must be given to the named person. Section 127 of the Scottish Act provides that where a patient s responsible medical officer wishes to grant a certificate suspending a measure authorising detention for a specified period, the medical officer shall give notice of the proposal to the patient s named person. Section 128 of the Scottish Act provides that where a patient s responsible medical officer wishes to grant a certificate specifying that certain measures contained in the Scottish Act are not authorised during a specified period, the medical officer shall give notice of the proposal to the patient s named person. Section 129 of the Scottish Act provides that where a certificate is granted under s127 or s128 of the Scottish Act, notice of it must be given to the patient s named person. 10

11 Section 144 of the Scottish Act provides that where a determination has been made by a patient s responsible medical officer of the Commission to revoke a compulsion order, notice of the determination must be given to the patient s named person. Section 153 of the Scottish Act provides that where a patient s responsible medical officer makes a determination extending a compulsion order, notice must be given to the patient s named person. Section 157 of the Scottish Act provides that where an application has been made to extension and variation of a compulsion order, the patient s responsible medical officer must give notice to the patient s named person, guardian or welfare attorney before the application is made. Section 224 of the Scottish Act provides that where a patient s responsible medical officer wishes to grant a certificate specifying a period of suspension of a measure authorising detention, the medical officer must give notice to the patient s named person before granting the certificate. Section 225 and 226 of the Scottish Act provides that where a certificate under section 224 is revoked by the patient s responsible medical officer of by Scottish Ministers respectively, notice must be given to the patient s named person. Section 290 of the Scottish Act provides that where a patient is to be removed from Scotland for cross-border transfer, notice is to be given to the patient s named person. These are only some of the provisions in the Scottish Act, which highlight the importance of the role of the patient s named person. The role is particularly important in relation to involuntary detention and treatment, which principles Australian legislation should encourage, not interfere with. Named persons have rights of notification, access to information, consultation, attendance and representation at MHT hearings and rights of appeal. While named persons must act in the best interests of the individual concerned, they provide an independent and separate voice from the person who will be responsible for a patient s care when released from hospital (or a prison). Proposals for Reform The Centre respectfully submits that any changes that are made to confidentiality and privacy laws must take into account the importance of the role of the carer. In order to perform their role effectively, the carer needs access to relevant information whenever necessary. 30 Any reform in the area of privacy and confidentiality should explore international instruments and policy to inform law reform so that it is effective for both the protection of consumer s 30 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p21. 11

12 basic human right to privacy, but ensures that carers are well informed to best support the consumer. Any legislative reform should take into account the Scottish Act that defines a Named Person and ensures that this named person is well informed of all decisions and treatment regarding the consumer. It is compulsory under the Scottish Act to define a named person when a consumer first contacts mental health services. 31 It will be helpful to have a similar requirement in Western Australia and other Australian jurisdictions, so that a nominated person will be contacted before the consumer is released from hospital (or prison) and is no longer an involuntary patient. By introducing a Named Person into legislation it will allow carers, if they are nominated, to better support the consumer when they are released from hospital and may prevent the consumer from a relapse. The named person must ensure that they act for the best interests of the consumer and provide adequate care to the consumer. The Mental Health Act 1996 (WA) should also be reformed to provide for a tripartite model of information sharing. The carer should be notified in a timely manner about: 1. Patient transfers; 2. Making of orders; 3. Revocation of orders; 4. Suspension of orders; 5. Leave of Absence orders; 6. Lapsing Orders; 7. Guardian and Administration Order applications, orders and appointments; 8. Any criminal charges concerning the consumer; 9. Any civil litigation concerning the consumer; and 10. All Mental Health Review Board Hearings. The patient s primary carer should also be given the opportunity to have standing to apply for a review and/or appeal against certain decisions or orders made in respect of a consumer. The legislation should also be reformed so as to include them during the consultation process as outlined in the NZ MHA. The legislative reform should also look to the UK Acts in relation to information sharing and carers. The Victorian Mental Health Act 1986 acknowledges and allows information to be disclosed where the information is reasonably required for the ongoing care of the consumer. Any reform in Western Australia should look to the Victorian Mental Health Act 1986 regarding the ongoing care of a consumer. However, 31 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p19. 12

13 the Centre submits that the health service provider should be required to disclose this information to the primary carer, if it is in the best interests of the consumer and that the release is presumed to be in the best interests unless certain prescribed circumstances exist; and that there is a right of review of this decision. Furthermore such legislation should include the requirement to engage the carer in a timely manner in any treatment and discharge planning. The reforms made to privacy and confidentiality laws in Western Australia should ensure that they are easy to comprehend to the non-lawyer, so that clinicians can easily understand their obligations and any exceptions. Misunderstanding the laws surrounding privacy and confidentiality can lead to a restrictive interpretation among the majority of professionals. 32 Trends in the US and UK have noted that this misunderstanding has led to the withholding of even the most general information about mental illness service provision, let alone information relating to discharge and any other information relevant to the carer s role. 33 It should be noted here that criminal sanctions against release of information can tend to scare people from making disclosures that are in fact lawful. So what is criminal must be clearly expressed to avoid this risk. The following legislative provisions of the Mental Health Act 1996 (WA) would clearly have the tendency to discourage lawful disclosure. They are as follows: 204. Records (1) The person in charge of an authorised hospital is to cause records to be kept in respect of each patient admitted to the hospital. (2) The person who is in charge of a place at which an involuntary patient or a mentally impaired accused is given any psychiatric treatment is to cause records to be kept in respect of the treatment given to the patient. (3) The records in respect of a person are to include (a) (b) (c) (d) (e) the name, address, and date of birth of the person; the nature of any illness or handicap, whether mental or otherwise, from which the person suffers; full particulars of all treatment administered to the person, and of the authority for that treatment, including details of any order under which the treatment was given; if the person dies, the date of, and cause of, death; and such other information as the regulations may require. (4) The regulations may prescribe the form of, and any other matters relating to the keeping of, records required to be kept under this section. [Section 204 amended by No. 84 of 2004 s. 82.] 32 National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p National Mental Health Consumer & Carer Forum, Privacy, Confidentiality & Information Sharing Consumers, Carers & Clinicians: A Position Statement and Issues Paper, 2011, p23. 13

14 205. Access to certain information about patient (1) A person may ask the Chief Psychiatrist to inform the person whether a particular person has been admitted to, or is detained in, an authorised hospital. (2) If the Chief Psychiatrist thinks that the inquirer has a proper interest in the matter, the Chief Psychiatrist is to give the required information to him or her, including particulars, where applicable, of the date of admission and the date of the person s discharge, release or death Confidentiality (1) A person must not directly or indirectly divulge any personal information obtained by reason of any function that person has, or at any time had, in the administration of this Act or the Mental Health Act Penalty: $ (2) Subsection (1) does not apply to the divulging of information (a) (b) (c) (d) in the course of duty; under this Act or another law; for the purposes of the investigation of any suspected offence or the conduct of proceedings against any person for an offence; or with the consent of the person to whom the information relates, or each of them if there is more than one. (3) Subsection (1) does not apply to the divulging of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates. [Section 206 amended by No. 50 of 2003 s. 80(2).] All and any legislative reform should ensure that the best interests of anyone with a mental illness are fostered and encouraged, having regard to the balance to be struck between their human rights and their need for considered, informed and efficacious care and treatment. Please contact the Centre on or office@mhlcwa.org.au, if you require any further submissions or clarifications in relation mental health issues. The Centre would like to acknowledge Marissa Tindiglia, law graduate, and Tatijana Vukic law student; volunteers at the Centre, for their contributions to this research. Yours faithfully SANDRA BOULTER Principal Solicitor and General Manager Mental Health Law Centre (WA) Inc. 14

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