crisis

Toward a national approach to information sharing in mental health crisis situations

Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations Report

Toward a national approach to information sharing in mental health crisis situations Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations Report

Š Commonwealth of Australia 2000 ISBN 0 642 36714 0 This work is copyright. It may be reproduced in whole or part for study or training purposes subject to the inclusion of an acknowledgment of the source and no commercial usage or sale.

Reproduction for purposes other than those indicated above requires the written permission of the Secretary, Commonwealth Department of Health and Aged Care, GPO Box 9848, Canberra ACT 2601.

First published February 2000 Additional copies of the report can be obtained from: Publications Officer Mental Health and Special Programs Branch Commonwealth Department of Health and Aged Care GPO Box 9848 CANBERRA ACT 2601 Telephone: 1800 066 247 (02) 6289 8396 Facsimilie: 1800 634 400 (02) 6289 8788 Website:

http://www.health.gov.au/hsdd/mentalhe

Suggested reference: Information Sharing in Mental Health Crisis Situations, Final Report of the Mental Health Crisis Intervention Ad Hoc Advisory Group, crisis intervention practice, police and mental health services, Mental Health and Special Programs Branch, Commonwealth Department of Health and Aged Care, February 2000

Publications approval number 2668

Foreword In 1995 the Crisis Intervention Ad-Hoc Advisory group was established; it provided expert advice to Australian police and health ministers on the need to develop good practice approaches to cooperation between police and mental health services in the management of crises involving people with mental illness. A Report from the Ad Hoc Advisory Group was released in March 1998 and made a number of recommendations about ways to develop more effective responses and better information sharing between police and mental health services when mental health crisis situations arise.

In response to the Report, and the need to continue our efforts in this important area, in 1998 I established an Expert Advisory Committee to progress the valuable work of the Ad Hoc Advisory Group. In particular, I wished to consider ways to implement Recommendation 11 of the Report which dealt with information sharing.

The Expert Advisory Committee’s Report, reproduced here, outlines the progress that has occurred in information sharing between police, health professionals, mental health and emergency services. It provides further recommendations for progressing partnerships and collaboration in this important area across the jurisdictions and examines the involvement of police and other services in crisis situations with people with a mental illness. It notes the value of quality mental health care services and early, effective responses to resolve crisis situations.

The Report also endorses the need to ensure that police services receive adequate information that allows them to effectively respond and resolve such situations.

I would like to acknowledge the contribution of participating agencies in completing this important Report and I commend it to my Ministerial colleagues, and State and Territory agencies. It is my sincere hope that the emphasis the Report places on building effective partnerships, collaboration and improving intersectoral linkages between police, mental health, primary care and emergency services will continue to be strengthened in the years ahead.

Dr Michael Wooldridge Minister for Health and Aged Care February 2000

TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

iv

EXECUTIVE SUMMARY

Contents Executive summary

vii

Summary of recommendations

xi

Introduction Background

1 1

1

Mental health crisis intervention in Australia 5 1.1 Defining mental health crisis situations 5 1.2 The final report of the Mental Health Crisis Intervention Ad Hoc Advisory Group 6 1.3 Police intervention and firearms deaths of mentally disordered persons 7 1.4 Responses of Police Services in Australia 9 1.5 The prevention and management of mental health crises by public mental health services in Australia 13 1.6 Issues at the coal-face for police services and mental health and other health care professionals 14

2

Ethical issues and considerations 2.1 Privacy and the National Standards for Mental Health Services 2.2 Health information privacy principles and privacy codes 2.3 Ethical issues and information sharing in mental health crisis situations 2.4 The Mental Health Professionals and Patient Information Guidance Notes in New Zealand 2.5 Privacy and confidentiality requirements in Codes of Conduct of Professional Associations 2.6 Other ethical considerations 2.7 Conclusions 2.8 Recommendations

17 17 19

Legislative issues 3.1 Legal questions and information sharing in mental health crisis situations 3.2 Confidentiality and disclosure provisions in mental health services and related legislation 3.3 Grounds justifying the disclosure of confidential information to prevent and resolve crises 3.4 Conclusions 3.5 Recommendations

31 31

3

v

21 24 25 27 28 29

31 33 36 37

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4

Options for establishing an information/referral network 4.1 Pro-active police data collection and the rights of people with mental illness 4.2 The establishment of an information/referral network 4.3 Recommendations

5

Protocols for information sharing between police services and mental health services in critical incidents and crisis management 5.1 The scope of existing joint police/mental health service protocols 5.2 Existing protocols for the disclosure of information to police by mental health services 5.3 Conclusions 5.4 Recommendations

39 39 42 44 47 47 50 52 52

Appendix A 55 Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations 55 Appendix B Glossary of Terms

59 59

Appendix C 61 Information disclosure and privacy provisions in the Code of Conduct of Professional Associations 61 Appendix D Information disclosure and privacy provisions in Australian Jurisdictions

65 65

Index

77

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EXECUTIVE SUMMARY

Executive summary Introduction This report outlines the findings and recommendations of the Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations. The Committee was charged with the brief of progressing the practice of, and arrangements for, information sharing between police, mental health and other health services giving particular attention to: •

ethical and legislative issues concerning information sharing and confidentiality considerations related to the management of mental health crisis situations;

•

the possibility of establishing an information/referral network, to refer effectively people with a mental illness (including people with non-psychiatric crises and dual disabilities) moving interstate or from city to city and to provide sources of case information for mental health workers; and

•

consideration, and if appropriate, development of protocols on information sharing in critical incidents and crisis management between police and mental health services, for recommendation to state and territory governments for adoption and implementation.

Structure of the report This report is divided into the following five sections: Section 1:

Mental Health Crisis Prevention and Intervention in Australia;

Section 2:

Ethical Issues and Considerations;

Section 3:

Legislative Issues;

Section 4:

Options for Establishing an Information/Referral Network; and

Section 5:

Protocols for Information Sharing between Police, Mental Health Services and other relevant services in critical incidents and crisis prevention and management.

Summary of conclusions Confidentiality and privacy are important in the mental health field where fears about disclosure and resulting discrimination may undermine therapeutic relationships and sound clinical casemanagement.

A greater and more systematic, day-to-day emphasis by clinicians in mental health settings on the importance of negotiating an understanding with consumers about confidentiality and information disclosure issues, would assist to both prevent and safely resolve crises.

Ensuring that communications systems are in place between mental health services, police and other relevant services (including ambulance services and general practice) to enable a response as early as possible in order to prevent or safely resolve crisis situations is consistent with the

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National Standards for Mental Health Service and the United Nations Principles on the Protection of People with Mental Illness.

Promoting the participation of the private psychiatric and private health sectors including general practice in ensuring that communications systems are in place to enable a response as early as possible in order to prevent or safely resolve crisis situations is critical.

Existing Australian health services information privacy codes and the codes of ethical conduct of the most relevant professional associations lend in principle support to the disclosure of confidential, personal information to police and to other relevant health and community care services in a mental health crisis situation.

The criteria by which the health services information privacy codes and the professional association codes would lend support to the disclosure of confidential information include: •

the prevention or lessening of threat to the safety and health of the person concerned; and/ or

•

the prevention or lessening of threat to the safety and health of another person or persons; and/or

•

the prevention or lessening of risk to public safety (including risk to property that would endanger public safety).

There is a lack of clarity in most Australian jurisdictions with the exception of the Northern Territory and possibly the Australian Capital Territory as to: •

whether or not mental health personnel can legally disclose information to police and to other relevant health and community care services for the purposes of preventing and/or safely resolving a mental health crisis situation; and

•

the type of confidential, personal information that can be communicated by mental health personnel.

This lack of legal clarity casts an element of doubt over the information disclosure provisions contained in existing protocols between police and mental health services.

In the absence of legal clarity, mental health professionals cannot be confident about the decisions they make in relation to information disclosure and cannot be expected to operate at an optimal level.

In the long term it is desirable for information disclosure provisions in legislation to be consistent with those contained in service standards, guidelines and joint service protocols.

Clarity and consistency in confidentiality and information disclosure provisions and requirements is preferable to uncertainty and inconsistency.

The development of joint service protocols between police and mental health services will assist to enhance the appropriateness and level of co-ordination in the system of care for people with mental illness.

Joint service protocols between mental health services and police and other relevant services (including ambulance services and Divisions of General Practice) are required at both State/ Territory wide levels.

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EXECUTIVE SUMMARY

Existing joint service protocols between police and mental health services require greater specificity in relation to the information that can be given to police by mental health services in situations where police have initiated contact with mental health services about a crisis situation that appears to involve a mentally ill or mentally disturbed person.

Given that it is often the police who attend situations involving a person whose mental health is deteriorating or the police who must manage a crisis situation until mental health services attend, it would appear important for the protocols to be equally specific about the type of personal information that can be disclosed to police irrespective of whether they or mental health services have initiated the referral.

Sound working relationships between police services, mental health services and other relevant services at the local level are critical to the prevention and resolution of mental health crisis situations.

Health services professionals who may work with people with mental disorder and mental health problems at the local level include mental health and other nurses, psychiatrists, general practitioners and other relevant medical practitioners, psychologists, social workers and welfare workers, occupational therapists, Aboriginal health workers, pharmacists and ambulance officers. These health service professionals may work in the government, private and/or nongovernment sectors.

Direct meetings between police services, mental health services including the private sector, consumers and consumer organisations will assist to enhance understanding of mental health crisis situations involving police.

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SUMMARY OF RECOMMENDATIONS

Summary of recommendations Ethical Issues Recommendation One That mental health services ensure that priority is given to working with the consumer while he/ she is well: •

in the context of case management discussing potential needs of the consumer were her/ his mental health to deteriorate and were there to be the need for intervention to prevent or resolve a crisis situation; and,

•

where the consumer has been an in-patient, the holding of discharge planning conferences to ensure the consumer’s care needs are met.

Recommendation Two That consistent with the National Mental Health Strategy’s renewed client focus and emphasis upon improving the quality and effectiveness of mental health services: •

State and Territory governments provide encouragement to mental health services to increase the emphasis given by clinicians to working with consumers to establish a mutual understanding of confidentiality and information disclosure issues;

•

further work be undertaken by mental health services to identify or develop, implement and evaluate approaches to ‘crisis pre-planning’, giving particular attention to identifying groups that might benefit most from ‘crisis pre-planning’ and identifying situations that might indicate that ‘crisis pre-planning’ is warranted; and

•

mental health services ensure that procedures are in place for consumers to be informed about the uses to which case information might be put in order to prevent and/or safely resolve a situation where there is a serious threat to the health or safety of a consumer or to the health or safety of another person.

Recommendation Three That Commonwealth, State and Territory Governments be encouraged to review their service standards, charters and confidentiality guidelines to ensure that where confidential information needs to be disclosed to police and to other health and community care services by mental health professionals for the purposes of preventing and/or safely resolving a mental health crisis situation, it is clearly addressed in a manner consistent with the recommendations and guiding principles suggested in this report (particularly Section 3.5—Recommendations 7-13 & Section 4.3—Recommendation 15).

Recommendation Four That the principles contained in this report to underpin provisions for the disclosure of information by mental health professionals to prevent and/or safely resolve a mental health crisis situation be included in the National Standards for Mental Health Services (particularly Section 3.5, Recommendations 7-13 & Section 4.3, Recommendation 15).

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Recommendation Five That the major mental health and other health professional associations be encouraged to inform their members including those working in the private sectors of their duties and obligations in relation to confidentiality and information disclosure.

Recommendation Six That the peak bodies for the media industry be encouraged to promote understanding throughout the industry of how mental health related issues might be reported responsibly.

Legal Issues Recommendation Seven That Commonwealth, State and Territory Governments be encouraged to review information disclosure provision in mental health legislation and health services and other relevant legislation to ensure that where confidential information needs to be disclosed to police and to other health and community care services by mental health professionals for the purposes of preventing and/or safely resolving a mental health crisis situation, it is clearly addressed and consistent provisions are detailed for: •

information disclosure in situations where the disclosure is necessary to: prevent or lessen a serious and imminent threat to the safety and health of the person concerned; or prevent or lessen a serious and imminent threat to the safety and health of another person or persons; or prevent or lessen a serious and imminent risk to public safety in general (this may include the safety of property that would seriously endanger public safety); and

•

specifying criteria to assess whether the person’s current condition warrants the disclosure of confidential case information, including for example, that: the health and safety of that person or of another person is seriously threatened by the person’s current condition; or there is a current risk that the person’s mental and/or physical condition will further deteriorate and will thereby seriously threaten the health and safety of that person or of another person; and the threat is serious; and the threat is current; and the threat is imminent; and the threat involves a risk to public health or public safety and to the health and safety of a person(s); the information is given to someone who can act to prevent or lessen the threat; and only the information necessary to achieve that purpose is given.

Recommendation Eight That the confidential information disclosed by authorised mental health professionals be limited to information that will prevent a crisis and/or safely and rapidly resolve a crisis.

Recommendation Nine That a record of the information that was disclosed be made in the person’s case file and be communicated, where clinically advisable, to the consumer at a time judged appropriate by the mental health service.

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SUMMARY OF RECOMMENDATIONS

Recommendation Ten That the requirements for formally recording information that was disclosed and for communicating that information to the consumer be contained in the service and standards charter of mental health services.

Recommendation Eleven That police ensure the security of confidential case information obtained from mental health professionals and the security of any record made of that information.

Recommendation Twelve That police ensure that confidential case information is used only for a purpose that is directly relevant to, and consistent with, the purpose for which it was first obtained.

Recommendation Thirteen That before using the confidential case information in the future, that police confirm with mental health services the present accuracy and relevance of that information.

Recommendation Fourteen That at an appropriate future point, the principles contained in this report to underpin provisions for the disclosure of information by mental health professionals to prevent and/or safely resolve a mental health crisis situation be included in the National Rights Analysis Instrument used for assessing the compliance of Australian mental health legislation with relevant human rights instruments.

A mental health services information/referral network Recommendation Fifteen That where the establishment of a flagging system on clinical records to provide warning of the possibility of harm to a client or to another person is viewed by a mental health service as being necessary, the mental health service ensure that the following principles and requirements are included in its service charter and its relevant confidentiality and information management guidelines: •

every reasonable effort has been made to engage the consumer in the development of a disclosure pre-plan;

•

every reasonable effort has been made to obtain, in the first instance, the consent of the person involved to having particular information ‘flagged;’

•

the grounds for exemption from obtaining consent are clearly stated, communicated to consumers and understood by record-keepers;

•

consumers have a right of reply and a right to complain through a formal mechanism;

•

there are processes in place for assessing the current accuracy of the flagged information and for removing both the ‘flag’ and the flagged information when they are no longer required;

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•

there is a system for recording information disclosure in personal case notes and for communicating this disclosure to the consumer at an appropriate point; there is an appropriate level of security of the flagged information; the uses to which the flagged information can be used are circumscribed to the lessening of serious threat to the consumer and/or other people, are clearly stated and are communicated to mental health professionals and to other health professionals; controls are in place to ensure the use to which the information can be put both during and after a crisis; the type of information that can be disclosed to police to inform the prevention or management of a crisis situation is clearly stated; processes and protocols for the disclosure of flagged information are clearly stated and communicated; there is a duty on the agency to whom the information is disclosed, to only use the information for the purpose for which it was sought and to ensure that the information is not broadcast or otherwise misused; the system operates in an accountable fashion; and where clinically advisable, the information disclosed be communicated to the consumer at a time judged appropriate by the mental health service.

Recommendation Sixteen That the establishment of an information service, accessible via a single 1800 telephone number and website be considered by the Commonwealth and State and Territory governments under the Second National Mental Health Plan. That a key purpose of this information be: •

providing mental health and other health professionals, police services and other health and community care services with information about how to contact mental health services which in turn might be able to provide relevant information to assist with the prevention or resolution of a mental health crisis situation.

Recommendation Seventeen That this information service be accessible on a twenty-four hour, seven-days a week basis.

Recommendation Eighteen That in the development of this information service specifically for professionals consideration be given to developing links with existing networks which should result in all Australians, wherever they are located, being able to obtain information about mental health services.

Supporting the development of protocols for information sharing between police and mental health services to prevent and/or safely resolve mental health crisis situations Recommendation Nineteen That consistent with the Second National Mental Health Plan’s focus on partnerships in service reform and delivery, State and Territory governments provide encouragement to mental health services and police services throughout Australia to establish or strengthen joint service protocols at both State/Territory wide and local levels.

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SUMMARY OF RECOMMENDATIONS

Recommendation Twenty That State and Territory governments also provide encouragement to mental health services including those in the private sectors to establish or strengthen joint service protocols with other relevant health services (eg Divisions of General Practice and ambulance services) and community care services at both State/Territory wide and local levels with a view to preventing mental health crises by improving on-going treatment through continuity of care, case management and co-ordination between service providers.

Recommendation Twenty-one That the information disclosure provisions in joint service protocols be consistent with the principles and criteria recommended in this report and they be developed in consultation with appropriate privacy advisers (particularly Section 3.5 and Section 4.3).

Recommendation Twenty-two That joint service protocols between police and mental health services and between mental health services and other relevant health services (eg Divisions of General Practice and ambulance services) and community care services specify the range and type of confidential information that may be disclosed by mental health professionals in accordance with relevant legislation for the purposes of preventing and/or safely resolving a crisis situation and that this information include the following: •

relevant aspects of the person’s illness, disability, behaviour, personal history and treatment and management plans that would help police to understand the situation at hand;

•

warning signals indicating deterioration in a person’s mental condition and subsequent threat to personal safety and health and/or the safety and health of others;

•

‘triggers’ to avoid when approaching the person;

•

what might be done to calm the person and de-escalate the situation; and

•

who, whether clinician and/or another person, might be able to advise police as to how best to handle the situation.

Recommendation Twenty-three That joint service protocols between mental health services and police services and other relevant health services (eg Divisions of General Practice and ambulance services) or community care services also limit: •

what can be done with the information once the current situation has been resolved;

•

how it can be used in the future;

•

to whom it can be disclosed and for what purposes; and

•

how long the information can be retained.

Recommendation Twenty-four That mental health services and other relevant health and community care services collaborate with police services to ensure that police have access to expert advice to assist them to accurately interpret and appropriately use the confidential case information forwarded by mental health professionals and to assist them to safely prevent or resolve the crisis.

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INTRODUCTION

Introduction In mid 1998, the Mental Health Branch of the Commonwealth Department of Health and Aged Care convened the Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations. The Committee was asked to consider the recommendations of the Final Report of the Mental Health Crisis Intervention Ad Hoc Advisory Group (March 1998) in relation to information sharing between police and mental health services. The Committee was given the following Terms of Reference.

Within the overall aim of improving continuity of care and treatment for people with mental illness the Committee will: 1

examine ethics and legislative issues concerning information sharing and confidentiality considerations related to the management of mental health crisis situations and, if appropriate, to develop national guidelines to inform legislative reform in this area;

2

examine the possible establishment of an information/referral network, to refer effectively people with a mental illness (including people with non-psychiatric crises and dual disabilities) moving interstate or from city to city and to provide sources of case information for mental health workers;

3

consider, and if appropriate develop, protocols on information sharing in critical incidents and crisis management between police and mental health services, for recommendation to State and Territory Governments for adoption and implementation.

The Committee was asked to provide a report for the information of health and police ministers by the end of 1998.

This report summarises the research conducted by the Committee and outlines the Committee’s conclusions and recommendations.

The findings and recommendations of this report are relevant to a range of health services professionals who may work with people with mental disorders and mental health problems at the local level including mental health and other nurses, psychiatrists, general practitioners and other relevant medical practitioners, psychologists, social workers and welfare workers, occupational therapists, Aboriginal health workers, pharmacists and ambulance officers. These health service professionals may work in the government, private and/or non-government sectors.

Background The Crisis Intervention Ad-Hoc Advisory Group was established in 1995 following situations where police intervention had resulted in the death of people with mental illness or other mental disorders. This Group was asked by the Commonwealth Minister for Health to provide expert advice to Australian Police and Health Ministers on good practice approaches to cooperation between police and mental health services in the management of crises involving people with mental illness. A Report containing this Group’s recommendations was released in March 1998.

The Report’s overarching recommendation was that Health and Police Ministers agree:

1

TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

that the main objective in resolving crisis situations involving people with actual or suspected mental illness is to ensure that the safety of all parties involved.1 The Group recommended that Police and Health Ministers adopt the Report’s set of guiding principles relevant to the management of crisis situations where there is a high risk to safety as a result of a person’s mental condition. These principles underpin the Group’s recommendations and are as follows: 1.

Effective mental health services in general, and crisis response services in particular, should be available in all parts of Australia and be accessible at all times.

2.

Within available resources, people must have equal access to mental health services which are of a consistent standard and which are culturally sensitive.

3.

There should be a greater focus on preventing mental health crises by improving on-going treatment through continuity of care, case management, intervention and follow-up care of mental health consumers and on negotiating in advance with consumers about their preferences for managing their crisis should a crisis situation occur.

4.

In a crisis situation involving people with a mental illness and a risk to safety: police have the responsibility to protect the safety of all parties; and within roles agreed between police and mental health services, mental health personnel should maintain the mental health needs of the consumer and carer, and the preservation of the consumer’s rights and dignity as a primary consideration within the overall objective of ensuring the safety of all parties.

5.

Effective resolution of crisis situations requires formalised systematic arrangements for cooperation between mental health service personnel and police in the management of crisis situations, fostered by the development of close working relationships at a local level.

6.

Within the overall objective of ensuring the safety of all parties, there is a need to balance duty to warn and the safety of crisis response personnel and police with the right of the consumer to privacy and confidentiality.

7.

Effective management of crisis situations requires provision for information sharing that is underpinned by legislation to provide a formal basis for information sharing across agencies.

8.

Data/information systems to routinely identify individual consumers about whom information sharing would be permitted in a crisis situation should focus only on those people with a history of violence and/or drug or alcohol misuse, in conjunction with a history of non-compliance with treatment.

9.

That national competency standards for all personnel likely to be involved in managing high risk situations involving people with mental illness should include the appropriate knowledge, skills, attitudes and values.

The role of the current Expert Advisory Committee was to progress the recommendations and implementation of the guiding principles related to information sharing between police, mental health and other health services giving particular attention to: 1

Mental Health Branch, Commonwealth Department of Health and Family Services (March 1998), Final Report of the Mental Health Crisis Intervention Ad Hoc Advisory Group, AGPS, Canberra, p. 3.

2

INTRODUCTION

•

ethical and legislative issues concerning information sharing and confidentiality considerations related to the management of mental health crisis situations;

•

the possibility of establishing an information/referral network, to refer effectively people with a mental illness (including people with non-psychiatric crises and dual disabilities) moving interstate or from city to city and to provide sources of case information for mental health workers; and

•

protocols on information sharing in critical incidents and crisis management between police and mental health services, for recommendation to State and Territory Governments for adoption and implementation.

3

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1 MENTAL HEALTH CRISIS INTERVENTION IN AUSTRALIA

1 Mental health crisis intervention in Australia This section defines ‘mental health crisis situation’ and provides information about the incidence and socio-economic profiles of those involved in fatal police incidents and in incidents where non-lethal force was used. An overview of current responses to mental health crisis situations and a discussion of key issues confronting police and mental health professionals are also provided.

1.1

Defining mental health crisis situations

Families and other carers, police and staff of community agencies are often the first people to identify warning signals that suggest a person with a history of mental illness or who is thought to be mentally ill, is in, or is quickly approaching, a state of crisis. Generally, members of these groups do not have formal training in mental health assessment and mental health crisis prevention and management. They cannot be expected to accurately diagnose the underlying condition. Rather, the best that can be expected is that they identify the warning signals, where possible attempt to gain the person’s co-operation in seeking help and seek the advice and assistance of an appropriate health service at the earliest possible point. Communication systems and protocols between relevant services are required to ease access to assistance and information when a person’s mental condition is rapidly deteriorating or when the person is in a state of crisis. For this reason, it is essential for this report to adopt an approach to defining a ‘mental health crisis situation’ that reflects accurately the experiences of consumers, their carers, service providers and police when a deterioration in a person’s mental condition threatens that person’s own health and safety and/or the health and safety of others.

In defining ‘mental health crisis situation’ it is important to emphasise that generally a mental health crisis does not involve a single incident. Rather, a mental health crisis often involves a number of incidents, a chain of inter-related events and a combination of circumstances. Though some mental health crises can occur with little warning, in most instances there are a number of warning signals of the impending crisis and of risk to health and/or safety. Naomi Golan, a crisis intervention theorist, notes that in addition to warning signals, the person usually goes through a series of predictable phases. Golan describes these phases: First, he experiences an initial rise in tension and responds with one or more of his usual problem-solving measures. If these do not work, he feels an increase in tension and a sense of ineffectiveness; he then mobilises his ‘reserve troops’ of external and internal resources and tries out new, emergency coping devices … If this further activity does not succeed in solving, mitigating, or even redefining the problem in a more acceptable way … tension will continue to rise to a peak with an increasing disorganisation in functioning. Feelings of depression, helplessness, and hopelessness may set in …2

2

Golan, N. (1978), Treatment in Crisis Situations, Free Press, New York, pp. 65-66.

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Understanding the nature of crisis situations and identifying warning signals can frequently provide opportunities for intervention that can prevent the escalation of the crisis and thereby minimise threat to the health and safety of the person and to anybody else. It is important for mental health services, police and other relevant health and community care services to work together to both prevent and safely resolve mental health crises.

A ‘mental health crisis situation’ is understood in this report to refer to: •

a series of events and a combination of circumstances in which a person appears to be mentally disturbed, or impaired in judgment and/or exhibiting highly disordered behaviour. It is a situation that requires communication and coordination between relevant services and assessment at the earliest possible point to: -

ascertain the need for treatment; prevent further deterioration in the mental condition and/or physical health of the person; and thereby prevent or lessen harm to the safety and health of the person or any other person or to the safety and health of the public in general.

This definition builds on and adapts the definitions used by mental health crisis teams to define a psychiatric emergency or crisis. 3 By emphasising the need to identify and respond to the warning signs of an unfolding crisis, an approach consistent with the United Nations Principles for the Protection of People with Mental Illness and with the Australian National Standards for Mental Health Services is advocated. For example, Standard 6.4 of the National Standards for Mental Health Services provides that: The mental health service has the capacity to identify and respond to people with mental disorders and or mental health problems as early as possible.4

1.2

The final report of the Mental Health Crisis Intervention Ad Hoc Advisory Group

The Mental Health Crisis Intervention Ad Hoc Advisory Group reported that a key issue emerging during the examination of the need for cooperation between police and mental health services, is the need for the police to access information about the person in crisis or whose mental condition is rapidly deteriorating versus the need of the mental health professional to balance their duties to warn, provide good clinical management and protect the privacy and confidentiality of consumers.

The Advisory Group’s discussion on information sharing between police and mental health services highlighted the need to increase the involvement of consumers in their case management plans by expanding the plans to include consumers’ wishes about the information to be disclosed during a crisis. Also highlighted was the need for mental health services and

3

For example see: Mental Health Division WA Health Department (1998), Emergency Psychiatric Services Policy, p. 6 and Mental Health Branch, Aged, Community and Mental Health Division, Victorian Department of Health and Community Services (1994), Psychiatric Crisis Assessment and Treatment Services: Guidelines for Service Provision, Melbourne.

4

Australian Health Ministers’ Advisory Council’s National Mental Health Working Group (1997), National Standards for Mental Health Services, AGPS, Canberra, p. 14.

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1 MENTAL HEALTH CRISIS INTERVENTION IN AUSTRALIA

police to involve families and carers to a greater degree in order to obtain basic information about the consumer in a crisis situation. The Advisory Group stressed, however, that carers and families should have no direct involvement in the management of incidents such as sieges and other situations where police negotiators are employed.

The Advisory Group was of the view that relevant protocols and guidelines and possibly legislative provisions, should clearly specify duties and obligations of mental health professionals in relation to information disclosure in mental health crisis situations.

1.3

Police intervention and firearms deaths of mentally disordered persons

As stated above, the establishment by the Commonwealth of the Mental Health Crisis Intervention Ad-Hoc Advisory Group, was precipitated by fatal confrontations between police and people with mental illness or mental disturbance. Major sources of statistical and analytical information about these incidents are publications prepared by the Australian Institute of Criminology. The publication entitled, Police Shootings 1990-97,5 revealed that 75 people were shot in confrontations with police during that period. Forty-one were shot by police officers and 33 died from self-inflicted gunshot wounds. Of those who were shot by police, the Institute reported the following findings: •

21 of the firearm deaths occurred in Victoria, 8 in New South Wales, 3 in Queensland, 3 in the Northern Territory, 2 in Western Australia, 2 in Tasmania and one in both South Australia and the Australian Capital Territory.

•

3 of the 41 deaths were females (one Aboriginal) and all occurred in Victoria. The remaining 38 deaths were of males (including 3 Aboriginal men).

•

The ages of those who died ranged from 16 to 50 years.

•

Nearly half of all deaths took place in a public street or car park. Approximately one third of the deaths occurred in at a private residence and in the remaining instances the individuals were shot on a beach (2), or in bushland (2), in a hospital car park, on a football oval or outside an airport.

•

In more than one-fifth of the cases, a domestic altercation had preceded police attendance.

In relation to the mental condition of those who were shot by police, the Institute reported that: •

alcohol (and/or drugs) may have been a contributing factor, with almost half of those who were fatally shot by police being under the influence of alcohol (or drugs) at the time of the incident;

•

in more than one third of the instances, the deceased was reported to have either been ‘depressed’ or to have had some form of psychiatric history requiring treatment.

Most of these instances where a person was fatally shot by police, the incident occurred following police responding to a call from a family or other community member in relation to a disturbance or to another incident that was occurring. Some type of threatening behaviour directed towards police often preceded the incidents. The Institute also raises the question of whether in some instances the deceased intended to lose his life.

5

Dalton, V. (1998), ‘Police Shootings 1990-97, Trends and Issues in Crime and Criminal Justice, No. 89, Australian Institute of Criminology, Canberra, p. 1.

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This phenomenon involves the deliberate intention of an individual to devise or manipulate a set of confrontational circumstances involving police officers, who, because of the escalating intensity of the situation are impelled to discharge firearms at the individual, inevitably resulting in the death of the person concerned. 6 The Institute emphasised the need for police to receive training and assistance in dealing with psychologically disturbed, depressed, suicidal, drug or alcohol-affected people in the context of a sudden, violent and often terrifying situation.

A second publication of the Institute, Police Custody and Self-Inflected Firearms Deaths7 , examined the details of 33 incidents of self-inflicted firearms deaths in police custody or when police were in attendance. In relation to these self-inflicted deaths, the Institute reported the following findings: •

In all cases the deceased was male.

•

More than half of the deaths occurred at a private residence.

•

In almost half of the cases, a domestic altercation (in most cases involving an intimate partner) had preceded police attendance.

•

In four cases the deceased had turned the firearm upon himself after fatally wounding either his wife or defacto.

•

Alcohol (and to a lesser extent drugs) may have been a contributing factor, with almost half of those who fatally shot themselves being under the influence of alcohol (or drugs) at the time of the incident.

•

In more than two-thirds of the cases, the deceased was reported to have been either ‘depressed’ or to have had some form of psychiatric history requiring treatment.

The Institute argued that while the issue of the availability of firearms should not be overlooked, attention needs to be directed towards strategies and interventions to deal with depression and mental illness resulting from, or in association with, the breakdown of intimate relationships.

In considering the findings of both publications, the Institute made the following conclusions that are relevant to this current report. ... a large number of those who die as result of a gunshot wound (either self-inflicted or inflicted by police) were either mentally ill or psychologically disturbed at the time of the incident. A significant number were also depressed, or severely agitated because of a domestic incident preceding police intervention. It can be seen that alcohol (and drugs) may have been a contributing factor in some of these incidents. Australian Police Services and Governments need to maintain their level of commitment and training to assist police in dealing with these incidents.

Police must be provided with the necessary defence and negotiation skills and weapons training necessary for dealing with irrational, armed and violent people, who may also be psychologically disturbed, mentally ill, or drug/alcohol affected.8 6

Ibid, p. 3.

7

Dalton, V. (1998), ‘Police Custody and Self-Inflicted Firearms Deaths’, Trends and Issues in Crime and Criminal Justice, No. 94, Australian Institute of Criminology, Canberra, p. 3.

8

Dalton, V. (1998), Police Shootings, op.cit., p. 6.

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1 MENTAL HEALTH CRISIS INTERVENTION IN AUSTRALIA

It is clear from the Institute’s findings that a critical component of the necessary defence required by police is timely access to information about the person involved that can assist them to safely resolve the crisis situation or critical incident.

1.4

Responses of Police Services in Australia

All Australian Police Services have moved to ensure that at least recruits receive training in mental health issues. Police Services in some jurisdictions, in Victoria for example, are also providing in-service training. The Victoria Police and the then Psychiatric Service, Department of Health Victoria co-operated to develop a training module on understanding mental illness.

Resource material was developed to assist police to have a greater understanding of mental illness and provide appropriate responses to situations involving a person with mental illness or other mental disorder. This included a video entitled Similar Expectations.

Australian Police Ministers have adopted a series of national police guidelines for incident management and conflict resolution, prepared by the National Police Research Unit that have relevance to the resolution of mental health crisis situations. These national guidelines are: •

National Minimum Guidelines for Incident Management, Conflict Resolution and Use of Force; 9

•

National Guidelines for the Deployment of Police in High Risk Situations; 10 and

•

National Guidelines for the Deployment of Police Negotiators.11

These documents seek to give guidance to police on how they can minimise risk, improve their operational safety, and resolve incidents with the minimum force and achieve the best outcomes.

The guidelines recommend that all jurisdictions ensure that police training provide an appreciation of the psychology involved in interactions and cover the actions and reactions of people suffering from mental illness, psychological, intellectual and other disabilities. In managing an incident effectively, emphasis is given to the need for police to gather as much relevant information as possible before attending the incident and where necessary obtaining advice from mental health services: Many incidents attended by police involve problems for which they have little or no skills. For example, people with mental disorders, psychologically disturbed people or people with intellectual disabilities present special problems to police which are best addressed by those who are properly trained in these fields, who possibly know the person and their history and can offer direct assistance or advice.

Each jurisdiction should endeavour to establish formal arrangements with the Mental Health authorities to ensure that appropriately skilled people are available to police twenty-four hours a day.12

9

Hamdorf, R., Boni, N., Webber, I., Pikl, A., & J. Packer (1997), National Minimum Guidelines for Incident Management, Conflict Resolution and Use of Force, National Police Research Unit, Adelaide.

10

National Police Research Unit (1994), National Guidelines Compendium, Adelaide.

11

Ibid.

12

op. cit., Hamdorf, R., Boni, N., Webber, I., Pikl, A., & J. Packer (1997) p. 30.

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TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

In addition to access to clinicians who best know the person in question, police also often need assistance from a clinician who is not involved with the person’s case management and treatment to assist them with accurately interpreting and then appropriately using case information. Many dilemmas and difficulties can arise in situations where a treating clinician provides more than initial information.

In recent years, Police Services throughout Australia have collaborated with mental health services to develop joint protocols for working together on mental health issues. Such protocols are now in place in the Australian Capital Territory, South Australia, Victoria, New South Wales, and Tasmania and in draft form in Western Australia. The protocols are generally based on the principle that in a crisis situation involving people with a mental illness and where there is a risk to safety, police have the responsibility to protect the safety of all parties and mental health staff should, within agreed roles, address the mental health needs of the consumer and carer. The protocols also require mental health staff to preserve the consumer’s rights and dignity, as a primary consideration within the overall objective of ensuring the safety of all parties. For example the Memorandum of Understanding between NSW Police and NSW Health states: In ensuring the safety of all parties there is a need to balance the right of the consumer to privacy and confidentiality with the duty to warn and the safety of crisis personnel from both services.13 Specific provisions for disclosure of information in an emergency or crisis situations are contained in the joint protocols of Police/Mental Health Services in: •

Australian Capital Territory, Victoria and New South Wales (in each case, the type of confidential information that can be disclosed by mental health services in the first instance is clearer when mental health services are referring to police rather than police seeking information from mental health services);

•

South Australia (in a major incident, Assessment Crisis Intervention Service teams are authorised to provide relevant confidential information to police psychologists or negotiators); and

•

Tasmania (doctors are authorised to provide police with such information as might be necessary for police to safeguard themselves and/or others and/or property, or as might be necessary to protect the patient from him/herself).

The Victorian and New South Wales protocols stress the need for local protocols to be developed that ensure appropriate levels of communication between services depending on the nature of the incident.

The information disclosure provisions of protocols between police and mental health services are discussed further in Section 5.

In addition to improving their capacity to respond effectively to situations involving people exhibiting mental disturbance, police services around Australia are also formally trialing methods to minimise injury during crisis situations the use of non-lethal weapons such as capsicum spray and the use of capture nets and police dogs. Victoria Police provided information from their Use of Force Register about recorded incidents involving people with a mental disturbance. The register records incidents that required police to use non-lethal force

13

Memorandum of Understanding—NSW Police and NSW Health, Principle 2.6, p. 2.

10

1 MENTAL HEALTH CRISIS INTERVENTION IN AUSTRALIA

including for example, capsicum spray. Assessment of ‘mental disturbance’ is made by police officers in circumstances including the following: ... the confirmed existence of/or suspected existence of a psychiatric history, any person to whom the Crisis Assessment and Treatment Team has been called out to assess, any person attempting suicide ... any person who is behaving in such a manner that this behaviour could be classified as hysterical, irrational, extremely strange or even eccentric, any incident where a person has been determined by police to require a psychiatric assessment or is being conveyed to a psychiatric hospital. Each situation is based on the circumstances at the time.14 The then Mental Health Branch, Victorian Department of Health and Human Services reported to the Committee, that checking by mental health services of the assessments made by police revealed the assessments to be correct in a reasonably high proportion of cases.

The Use of Force Register classifies incidents where non-lethal force was used by police into three categories: •

High Risk—Physical Risk;

•

High Risk—Critical Risk; and

•

Low Risk.

Victoria Police report that Physical Risk or Critical Risk incidents are those that include by way of example the following situations: where a person is armed with a weapon or explosive device, any incident where the Special Operations Group is called out, any incident where the subject is the carrier of a contagious disease or is spitting blood at police, any situation where a hostage is taken and any siege situation etc.15 A search of the Use of Force Register revealed the following: •

of the 8,393 recorded incidents, 727 incidents involved people who were determined by police to have a mental disturbance (8 per cent of all recorded incidents);

•

incidents involving a person who was determined by police to have a mental disturbance accounted for 39 per cent of all high risk incidents (421 out of 2,120 incidents);

•

58 per cent of the people who were determined by police to have a mental disturbance were involved with high-risk incidents.

An analysis of the type of incident where there was a high risk and where the situation involved a person who was determined by police to have a mental disturbance, revealed the following: •

30 per cent (128) of the incidents were to prevent self harm;

•

29 per cent (120) of the incidents were to assist another agency (eg a Crisis Assessment and Treatment Team, Ambulance Officers and medical practitioners);

14

Victoria Police (19.10.1998), ‘Mentally disturbed persons and the need for access to information about their medical/psychiatric history’, Special Report Prepared for the Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations.

15

Ibid.

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•

12 per cent (49) of the incidents involved a domestic dispute;

•

8 per cent (35) of the incidents were to assist a relative;

•

6 per cent (23) of the incidents involved a street arrest;

•

6.4 per cent (27) of the incidents were to subdue the suspect;

•

5 per cent (22) of the incidents involved a siege situation.

The data from the Victoria Police Use of Force Register indicates that police are involved with a significant number of high-risk incidents involving people with mental disorder. The data also suggest the importance of communication and co-ordination between police, mental health services and other relevant services as early as possible to prevent or safely resolve a crisis situation.

The Australian Bureau of Criminal Intelligence is currently exploring the possibility of establishing a critical incident database that would contain both operational and research information. The major purposes of the database would be to: •

assist the peaceful resolution of life threatening incidents through the use of historical information including subject behaviour, successful resolution strategies and best practice models; and

•

provide research information to assist with training and the development and maintenance of best practice.

The Australian Bureau of Criminal Intelligence is exploring the possibility and usefulness of the database being linked to an international police internet site, Law Enforcement Negotiation Support System, that provides collective information to assist with the peaceful resolution of high risk incidents. The Bureau is of the view that the research component of the proposed national database, provides an opportunity for Australian Police Services, mental health services and other relevant health services to collaboratively develop a research database capable of providing the empirical data and other key information that is currently lacking. For example, current databases containing information about fatal incidents in police custody do not have specific information about: •

whether the person who was shot by police or who shot him/herself in the presence of police had a formal psychiatric history ie whether the person was known to a public mental health service in the jurisdiction in which the death occurred and/or known to another jurisdiction’s public mental health service;

•

whether the person was known to a private psychiatrist and/or receiving treatment in a private health care facility or from a general practitioner;

•

the details of the person’s condition eg formal diagnoses, presence of other conditions, treatment and its currency, recency of contact with a health professional etc;

•

the location of the incident ie urban metropolitan, regional centre, rural or remote location;

•

whether the person was ‘out of area’ ie whether the incident occurred away from the person’s usual area of residence.

12

1 MENTAL HEALTH CRISIS INTERVENTION IN AUSTRALIA

•

where it was noted that ‘alcohol or drugs were involved’ did this mean that the person was acting under the temporary influence of alcohol/drugs or was the person considered by medical opinion as having an alcohol/drug related mental disorder.

Without data of this nature it is difficult to extrapolate key factors or ascertain the importance and inter-relatedness of various factors. Further, information about the numerous incidents where police and mental health services have been able to safely resolve a crisis or critical incident is lacking. The availability of information about fatal incidents, incidents resulting in non-lethal harm and safely resolved incidents would assist police, mental health services and other health services to know where to focus their attention and would assist with the following activities: •

the development or fine tuning of joint service protocols;

•

training programs;

•

the management of operations; and

•

post-incident management and evaluation.

Other initiatives being undertaken by police to improve their capacity to respond to people exhibiting mental disturbance, include participating in inter-agency task forces and networks.

Evidence presented to the Committee suggested that by regularly meeting with a wide range of health services and community organisations, police are utilising the opportunity to establish both formal and informal strategies for proactive problem solving and information exchange.

1.5

The prevention and management of mental health crises by public mental health services in Australia

Mental health services throughout Australia have continued the development of mental health crisis services. The objectives of these services include those listed in the Western Australian Emergency Psychiatric Services Policy: •

provide an integrated 24-hour, regional emergency psychiatric response;

•

provide timely and accessible emergency service;

•

prevent unnecessary or inappropriate admission to in-patient services;

•

ensure a coordinated response between mental health services and other key emergency services;

•

facilitate appropriate referral to regional community-based and in-patient services and other agencies, to ensure ongoing care;

•

maximise client decision making and carer and family involvement; and

•

respond in a manner that is sensitive to cultural and social conditions.

Some mental health crisis teams, for example in Victoria and New South Wales, also provide treatment.

Since their inception, the mental health crisis teams have developed extensive skills in the assessment, treatment and management of emergency situations. The teams have sought to develop localised protocols with general hospitals and other in-patient services, community based mental health services, police, Community Services, ambulance services and the Royal

13

TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

Flying Doctor Service. In some jurisdictions a single point of triage has been implemented or trialled. For example, a state-wide single point of triage has been implemented in Western Australia and a single point of triage throughout an area within which there is a twenty-four hour mental health services has been trialled in some rural areas in New South Wales. Victoria has twenty-four-hour, local area crisis assessment and treatment teams (as do New South Wales in several regions). Some jurisdictions, Victoria and Western Australia for example, have backed up their mental health crisis response with statewide client information systems.

The developments in recent years reflect the two major models of mental health crisis services that have emerged in Australia. One model centres on a single point of triage and provides assessment, information, advice and referral. The second model involves local area mental health crisis services that provide treatment in addition to assessment and advice. In some instances, particularly in rural areas the models merge. For example, in some rural areas of New South Wales, the mental health crisis service provides assessment and treatment in the local area as well as providing a single point of triage for communities throughout the region that do not have twenty-four-hour local mental health services.

Though the mobility and availability of these services after-hours varies across Australia, there are now mental health crisis teams available in all States and Territories. However, the level of mental health crisis services available are limited in number and are reported to have difficulty in adequately servicing metropolitan areas let alone most rural/remote areas. Members of the Expert Committee were concerned to affirm the importance of a key principle enunciated earlier by the Crisis Intervention Ad-Hoc Advisory Group: Effective mental health services in general, and crisis response services in particular, should be available in all parts of Australia and be accessible at all times.16

1.6

Issues at the coal-face for police services and mental health and other health care professionals

The Mental Health Crisis Intervention Ad-Hoc Advisory Group identified the stigma associated with mental illness as being one of the main reasons why in some instances there are poor relationships between police and mental health consumers. This is thought to be the case, particularly in urban areas where individual police are unlikely to have personal knowledge of the consumer experiencing the crisis. Stigma in this context refers to both police attitudes and misconceptions about people with mental illness and consumer attitudes to, and misconceptions about the role of police. Compounding this are two important factors: •

one, the genuine fear of the police uniform and weapons experienced by someone experiencing paranoia and delusions and the fear experienced by police confronting someone experiencing psychosis who is threatening violence; and

•

two, as the Australian Institute of Criminology’s research suggests, police can be confronted with a psychologically disturbed, depressed, suicidal, drug or alcohol-affected person in the context of a sudden, violent and often terrifying situation.

16

Mental Health Branch, Commonwealth Department of Health and Family Services (March 1998), Final Report of the Mental Health Crisis Intervention Ad Hoc Advisory Group, AGPS, Canberra, p. 3.

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1 MENTAL HEALTH CRISIS INTERVENTION IN AUSTRALIA

Limited health and community resources in many areas can result in police undertaking mental health related roles. This is frequently so in rural and remote areas where there are no, or very limited, mental health services and an absence of crisis intervention services and personnel who can provide advice and assistance.

The Queensland Police Service in correspondence with the Expert Advisory Committee outlined the difficulties faced by police in obtaining information from mental health services that can assist them to decide how best to manage a mental health crisis situation. ... With a view to making an informed operational decision police require as much information as possible about the person involved in the mental health crisis. This normally includes, full name, date and place of birth, full description of the nature and history of mental illness, next of kin, propensity for violence and whether the person is armed with a weapon.

It is often the case that police are unable to ascertain patient histories outside of normal working hours. This is problematic in that police are available on a 24-hour basis and are normally the first agency called to deal with such situations after hours...17 Additionally, police require access to sufficient expertise to enable them to correctly interpret, benefit from and appropriately use the case information they receive from mental health services.

On the other side of the partnership, mental health professionals including those working in the private sectors and general practitioners, consumers and carers are concerned to ensure that the information provided to police is secure, interpreted accurately and not misused. The development of sound working relationships between all parties at the local level, underpinned by clear joint service protocols, would tend to lead to trust, cooperation and the judicious sharing of relevant information.

17

Correspondence: W. Aldrich, Acting Commissioner, Queensland Police Service, 26 October 1998.

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16

2 ETHICAL ISSUES AND CONSIDERATIONS

2 Ethical issues and considerations This section discusses ethical issues and considerations in relation to information sharing between relevant services that are working together to prevent or safely resolve a mental health crisis information. Also examined are privacy and confidentiality provisions in the National Standards for Mental Health Services, health information privacy codes and the confidentiality requirements in the codes of conduct of relevant professional associations. Key lessons from the New Zealand experience with implementing privacy principles in the mental health field are outlined.

2.1

Privacy and the National Standards for Mental Health Services

The National Mental Illness Inquiry of the Australian Human Rights and Equal Opportunity Commission and the Second National Mental Health Plan emphasised the need for mental health services to recognise the human rights of people with mental disorders. The National Standards for Mental Health Services seek to assist mental health services in Australia to uphold the rights of consumers. Highlighted are the consumer’s right to privacy, informed consent and to participate in her/his treatment. Standards relevant to ethical considerations arising for personnel involved with the prevention and management of mental health crisis situations include the following: •

The right of the consumer not to have others involved in their care is recognised and upheld to the extent that it does not impose imminent serious risk to the consumer or other person(s).

(Standard 1.5)

•

Policies, procedures and resources are available to promote the safety of consumers, carers, staff and the community. (2.3)

•

Staffs of the Mental Health Service comply with relevant legislation, regulations and instruments in relation to the privacy and confidentiality of consumers and carers. (5.1)

•

The Mental Health Service has documented policies and procedures, which ensure the protection of confidentiality and privacy for consumers and carers, and these are available to consumers and carers in an understandable language and format. (5.2)

•

Consumers give informed consent before their personal information is communicated to health professionals outside the Mental Health Service, to carers or other agencies or people. (5.4)

•

Each consumer receives assistance to develop a plan, which identifies early warning signs of relapse and appropriate action. (6.7)

•

That Mental Health Service has formal processes to develop intersectoral links and collaboration. (8.3.3)

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•

Data collected are stored and reported in a manner that ensures confidentiality and complies with relevant legislation. (9.27)

•

The Mental Health Service complies with relevant legislation and regulations protecting consumer confidentiality and ensures that documentation processes are such that confidentiality is protected. (10.1)

•

That the Mental Health Service ensures that only authorised persons have access to information about the consumer. (10.7)

These standards are consistent with the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. Confidentiality and privacy are clearly important in the mental health field where fears about disclosure and resulting discrimination may undermine therapeutic relationships. Siegler discussed the dual role of confidentiality in the doctor-patient relationship: In the first place, it acknowledges respect for the patient’s sense of individuality and privacy. The patient’s most personal, physical and psychological secrets are kept confidential in order to decrease a sense of shame and vulnerability. Secondly, confidentiality is important in improving the patient’s health care ... The promise of confidentiality permits people to trust ... that information revealed to a physician in the course of a medical encounter will not disseminated further ... This bond of trust between patient and doctor is vitally important both in the diagnostic process ... and subsequently in the treatment phase, which often depends as much on the patient’s trust of the physician as it does on medications and treatment.18 Both the National Mental Health Standards and the UN Principles envisage the need in certain circumstances to balance the rights of consumers to privacy and freedom from intervention with the need to minimise threat to public safety. To prevent or resolve a mental health crisis situation and thereby to prevent or lessen serious threat to the health or safety of a person exhibiting mental disturbance and to the safety of another person is clearly one such circumstance. The UN Principles, for example, contains the following ‘general limitation clause’: The exercise of the rights set forth in these Principles may be subject only to such limitations as are prescribed by law and are necessary to protect the health or safety of the person concerned or of others or otherwise to protect public safety, order, health or moral or the fundamental rights and freedoms of others. 19 The ethical dilemma in many cases relate to what information should be disclosed, and in doing so, whether such disclosures will infringe upon a person’s right to privacy and on the therapeutic relationship. In practice, most mental health professionals would hold the view that in situations where a client is posing a serious, imminent threat to their own safety and/or to the safety of another person or persons, disclosure of confidential information to lessen the level of risk is justifiable.

18

Siegler, M (1992), ‘Confidentiality in Medicine—A Decrepit Concept’, New England Journal of Medicine, Vol. 307, No. 24 pp. 1518-1521 cited in Cook, H (1996), Confidentiality in Mental Health Settings, Mental Health Division Health Department of Western Australia, p. 9.

19

United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care.

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2 ETHICAL ISSUES AND CONSIDERATIONS

2.2

Health information privacy principles and privacy codes

The Information Privacy Principles of the Privacy Act 1988 (Commonwealth) apply to Commonwealth departments and agencies that hold personal information. The Information Privacy Principles provide rules relating to the collection, storage, security, use and disclosure of personal information by Commonwealth agencies, as well as access to and correction of such information by the person concerned.

On 16 December 1998, the Federal Government announced that it would develop a light-touch legislative scheme to support and strengthen self-regulatory privacy protection in the private sector. The legislative scheme will support the existing self-regulatory approach by recognising codes developed in the private sector and providing a legislative framework to apply where such codes are not in place. The legislative framework will be based on the National Principles for the Fair Handling of Personal Information (National Principles) issued by the Privacy Commissioner to assist business to provide consistent privacy protection through the development of codes of conduct.

In May 1999, the Federal Attorney-General asked the Privacy Commissioner to consult widely in developing views on what changes, if any, are needed to the National Principles for the Fair Handling of Personal Information to provide appropriate coverage for personal health information held in the private sector. The Attorney-General asked the Privacy Commissioner to advise him as soon as possible, given that the ‘light touch’ privacy legislation will be being drafted from mid year. The Privacy Commissioner wrote to over 300 organisations seeking responses to an Issues Paper, which was also available through the Internet. Over 100 organisations made submissions. The Privacy Commissioner is currently preparing this report to the Attorney-General.

It should be noted that the proposed Commonwealth private sector legislation will establish a regime for the recognition of self-regulatory codes backed by a default legislative regime based on the Federal Privacy Commissioner’s National Principles for the Fair Handling of Personal Information. Privacy principles included in a code for the handling of personal information (including personal health information) will be required to be equivalent, as a package, to the National Principles and will need to be approved by the Federal Privacy Commissioner. An act or practice by an organisation that breaches a principle in an approved code will be an interference with privacy that can be the subject of complaint to a complaint body, if one exists, or otherwise the Federal Privacy Commissioner.

The National Principles and the Information Privacy Principles provide a broad framework for considering information privacy and disclosure in mental health crisis situations generally. The Information Privacy Principles provide limits on disclosure of personal information and provide that personal information shall not be disclosed by a record-keeper unless: (a)

the individual concerned is reasonably likely to have been aware, or made aware ... that the information of that kind is usually passed to that person, body or agency;

(b)

the individual concerned has consented to the disclosure;

(c)

the record keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;

(d)

the disclosure is required under law; or

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(e)

the disclosure is reasonably necessary for the enforcement of the criminal law or of the law imposing a pecuniary penalty, or the protection of the public revenue.20

Information disclosure to prevent or lessen a serious and imminent threat to the life or health of an individual or of another person is a key principle underpinning privacy law in Australia and in other jurisdictions.

There are health services information privacy principles/codes in place in New South Wales, Victoria, Tasmania, Northern Territory and in draft form in South Australia. In the Australian Capital Territory, health services information privacy principles are contained in the Health Records (Privacy and Access) Act 1997. In some instances, for example, in the Australian Capital Territory, the codes apply to the private health care industry whilst in other instances, for example in New South Wales, the codes apply largely to the public sector. In some jurisdictions, for example and again in New South Wales, the health information privacy code also applies to the records of public patients being treated in the private sector. Specific and general confidentiality and information disclosure provisions in mental health legislation take precedence over the provisions contained in privacy codes. The relevant provisions of existing health services information privacy codes can be found in the Appendices.

Generally the codes view ‘information privacy’ as the right of an individual to exercise appropriate control over the extent to which personal information about himself/herself is available to others. Confidentiality is viewed as the restriction of access to personal information to authorised persons and processes at authorised times and in an authorised manner. The legal term ‘duty of confidence’ refers to a narrower concept that applies where certain relationships exist, for example between doctor and patient.21 The codes acknowledge that the rights to confidentiality and privacy are not absolute. For example: •

the draft Code of Fair Information Practice for the South Australian Public Health System uses the term ‘fair information practice’ to emphasise the need for balancing the right to privacy and confidentiality protection with other legitimate interests; and

•

the Northern Territory Health Services’ Information Privacy Code of Conduct acknowledges that in order to achieve its mission of improving the health status and wellbeing of all people in the Northern Territory, there is a need to maximise communication whilst at the same time safeguarding privacy.

The Information Privacy Code of Conduct of the Northern Territory Health Services specifically discusses clients with mental health problems and states that they are entitled to the same privacy rights as any other client of the Territory Health Service. However, the Code also states that the issue of privacy for clients with mental health problems requires special consideration because of the potential for community discrimination.22 The health services information privacy principles and codes in Australia seek to strike a balance between individuals’ rights to confidentiality and privacy and social objectives to be achieved, including effective policing of the criminal law and maintenance of public safety.

Police in all Australian jurisdictions are charged with the duty to protect all persons from injury 20

s14 Privacy Act 1988 (Commonwealth of Australia).

21

NSW Department of Health (1996), Information Privacy Code of Practice, p. 7.

22

Territory Health Services (1997), Information Privacy Code of Conduct, Government Printer of the Northern Territory, Darwin, p, 23.

20

2 ETHICAL ISSUES AND CONSIDERATIONS

or death whether arising from criminal or other acts, and to do anything necessary for or incidental to, the exercise of this duty. Police have wide powers to collect and maintain personal information, and many police functions rely on effective information collection and analysis.

The legislature, the judiciary, and the police have long recognised the need to protect individuals from the improper use or disclosure of personal information with the result that there are numerous safeguards in relation to privacy and confidentiality embodied in Judges Rules, Police Standing Orders, various legislation and the common law.23 The disclosure of personal information to police by a mental health professional in a mental health crisis situation would be supported by the Victorian, Tasmanian and Northern Territory health services information privacy codes and by the Australian Capital Territory principles. The criteria by which the codes would allow disclosure of personal, confidential information to police include: •

the prevention or lessening of threat to the safety and health of the person concerned;

•

the prevention or lessening of threat to the safety the safety of another person or persons; and

•

in some jurisdictions, the prevention or lessening of risk to the safety of property.

In contrast there is lack of clarity in mental health statutes in all jurisdictions with the exception of the Northern Territory in relation to the duties and obligations of mental health professionals to disclose confidential information to police in mental health crisis situations. This situation is discussed further in Section 3.

2.3

Ethical issues and information sharing in mental health crisis situations

Discussions about ethical considerations in relation to confidentiality and information disclosure in the mental health and medical fields often ponder the tensions arising for health professionals from conflicts in interests between an individual and other parties with legitimate concerns and interests. For example, Professor Patricia Backlar, Editor, ‘Ethics in Community Mental Health Care’ section of the Community Mental Health Journal discussed some of the constraints of confidentiality: The boundaries of confidentiality are constrained when the health, wellbeing, and safety of identifiable persons, or society in general are threatened (in psychiatry, the Tarosoff case, 1976, has become an archetypal example of this). But the limits of confidentiality also may be constrained when the patient’s personal stake in preserving confidentiality conflicts with her or his personal interest in securing adequate health care.24 Ethical questions for mental health service personnel whether they are practicing in the public or private sectors where their responsibilities require them to consider the appropriateness of disclosing confidential case information to assist with the prevention and safe resolution of a mental health crisis situations include: 23

See discussion: Tasmanian Government, Information Strategy Unit (August 1997), Information Privacy Principles: Guidelines for Tasmanian Government Agencies.

24

Backlar, P. (1996), ‘Ethics in Community Mental Health Care’, Community Mental Health Journal, Vol. 32, No. 6, p. 515.

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•

the circumstances that might justify mental health service personnel informing police about the possibility of public safety being at risk;

•

the circumstances that might justify the breaching of consumer confidentiality and privacy and communicating case information without the consent of the consumer;

•

their concern about their own inability to ensure that the confidential information they disclose is not broadcasted or otherwise misused; and

•

the effect of the information disclosure on their therapeutic relationship with the person about whom the information relates.

These issues also frequently arise for general practitioners. A discussion paper, prepared by Dr Hugh Cook for the Mental Health Division of Western Australian Health Department, raises clinical issues that underpin some ethical dilemmas faced by mental health professions in determining whether to disclose confidential, personal information. He states: In clinical practice, factors such as increasing specialisation, multi-disciplinary team management and the need to involve the family and other carers can result in conflict between a person’s wish for absolute confidentiality and their desire to receive the best possible care.25 Backlar also discussed the conflicts and tension that can arise in relation to confidentiality and ‘good’ patient care: The consumer, the informal caregiver, and the health care provider may comprise an interdependent triad that poses a web of conflicting requirements, conflicting interests, and conflict of interests. At all times there is a delicate balance between protecting a consumer’s right to privacy and wellbeing, with the informal caregiver’s need for accurate information, and with society’s right to be protected.26 While a sound therapeutic relationship depends on a mutual understanding about confidentiality, good clinical case management generally relies on information sharing between professional staff, families and other care givers. Dr Cook argues that this conflict between the desire for good clinical case management and the right to privacy and confidentiality and varied legal obligations of clinicians, make it necessary for the clinician to discuss confidentiality issues both at an early stage of, and throughout, the therapeutic relationship to: help to ensure that an agreed understanding is reached about what can be communicated to family, carers and other health professionals. This discussion will often require ongoing discussion and clarification. Where relevant it is important to inform patients of the possibility of compelled disclosure and make them aware of the legal and ethical obligations of the mental health practitioner.

Dr Cook makes a series of recommendations that seek to establish a more common and a more routine approach to confidentiality. His recommendations include: 1.

Mental health agencies should have readily available policies and procedures on confidentiality to guide professional staff, families and care givers.

25

Cook, H (1996), Confidentiality in Mental Health Settings, Mental Health Division Health Department of Western Australia, p. i.

26

Ibid, p. 517.

22

2 ETHICAL ISSUES AND CONSIDERATIONS

2.

Confidentiality issues should, at the commencement of care, be discussed by clinicians with their patients. By a process of negotiation an understanding should be reached about: •

3.

who can be approached for additional information and what information will be sought; • what information will be conveyed to other health professionals, family and other caregivers.

The negotiated understanding about confidentiality needs to be recorded in patients’ case management plans and should be regularly reviewed and updated.

4.

There will be occasions when clinicians and patients disagree about what should be kept confidential and what should be communicated to others. Patients should be advised of any disclosure of otherwise confidential information.

5.

Confidentiality issues should be discussed with patients’ families and caregivers. When a patient is being managed by a multi-disciplinary team, a health professional who can be contacted by a patient’s family and care givers to discuss the patient’s management, should be identified.

6.

Agencies should ensure that their patient information and communication systems support the maintenance of patient confidentiality.

7.

The issue of confidentiality should be included in the undergraduate, postgraduate and continuing eduction of all mental health professionals.27

The Committee confers with Dr Cook’s recommendations and agrees that a greater and more systematic, day-to-day emphasis by clinicians in mental health settings on the importance of negotiating an understanding with consumers about confidentiality and information disclosure issues, would assist to prevent or resolve a crisis situation. Discretion and judgment would need to be exercised in deciding when to inform consumers about the uses to which their personal information might be put were there to be a crisis situation or if the person’s own safety or the safety of another person were to be threatened.

The Federal Privacy Commission gives strong support to the practice of ‘pre-planning’, a process of case management by which a consumer and his/her clinician develop a mutual understanding of what steps are to be taken and what information is to be disclosed if a mental health crisis situation occurs and the consumer is unable or refuses to consent by reason of his/ her mental condition. This process could be used to negotiate agreement about what information can be disclosed to whom and who can be approached for additional information, advice and/or assistance.

Some difficulties may arise with the implementation of pre-planning processes. For example, it may not always be possible to observe a person’s advanced directives due to: •

the person’s condition at the given point in time requiring in the view of the treating clinician a different course of treatment than the one originally stipulated by the person;

•

variations in the course or manifestation of a person’s illness;

•

the consequences of unanticipated events; or

27

Ibid, p. 3.

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•

factors related to the level of resourcing of, or the level of demand experienced by, local mental health services.

Despite any practical problems that may arise, Professors Sidney Bloch and Bruce Singh, Department of Psychiatry, Melbourne University view ‘pre-planning’ or an ‘advanced directive’ as being an important strategy in sparing people from developing full-blown psychoses and in engaging a person in treatment before serious detrimental affects are experienced. The eminent Australian psychiatrists expressed the following hope: The ‘advance directive card’ may become an acceptable part of having a recurrent psychiatric disorder—perhaps as commonplace as an ‘organ donor card’.28 Professor Backlar also expressed the view that pre-planning or advanced directives can empower consumers, diminish the severity of psychotic episodes and enhance community safety: I believe we envision advance directives to be a tool that will provide for improved and more appropriate treatment that hopefully may help diminish the number and severity of psychotic episodes that an individual may suffer. Directives may give persons with severe psychiatric disorders the opportunity to be truly involved with their treatment and to make educated choices about their medication and hospitalisation preferences.29 In a similar vein, the Human Rights and Equal Opportunity Commission released Discussion Paper: Living Wills, (November 1998) that explores the possible use of living wills (or advanced directives) in mental health treatment and care in Australia. Anecdotal evidence before the Committee, suggests that mental health services have begun to explore the use of preplanning to prevent and safely manage crises. The Second National Mental Health Plan’s emphasis on improved consumer outcomes provides an opportunity for mental health services to be encouraged to build on pre-planning initiatives.

2.4

The Mental Health Professionals and Patient Information Guidance Notes in New Zealand

The New Zealand Health Information Privacy Code 1994 applies to health and disability services of both the public and private sectors. While the code does not derogate from any law that authorises or requires information disclosure, the Code addresses limits on the disclosure of personal health information. Rule 11 of the Code provides a health agency that holds information must not disclose the information unless the agency believes on reasonable grounds including: that the disclosure of the information is necessary to prevent or lessen a serious and imminent threat to: I.

public health or public safety; or

II.

the life or health of the individual concerned or another individual.

28

Bloch, S. & B. Singh (1997), Understanding Troubled Minds: A Guide to Mental Illness and Its Treatment, Melbourne University Press, Melbourne, p. 313.

29

Backlar, P. (1997), ‘Ethics in Community Mental Health Care’, Community Mental Health Journal, Vol. 33, No. 4, pp. 263.

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2 ETHICAL ISSUES AND CONSIDERATIONS

The Code lends in-principle support to the disclosure of information in a mental health crisis.

The report of the Mason Inquiry into certain mental health services in New Zealand, showed that despite this disclosure provision, the Privacy Act had been misused by mental health professionals to justify not disclosing information. In the wake of the Inquiry, the New Zealand Privacy Commissioner at the invitation of the New Zealand Mental Health Commission prepared Guidance Notes for Agencies in the Mental Health Sector and to assist mental health professionals to apply the privacy principles in conjunction with the provisions of the Mental Health Act. In discussing the provision for information to be disclosed in order to prevent or lessen a serious and imminent threat to public safety, or the life or health of any individual, including the patient, the Guidance Notes outline the criteria for such a disclosure: •

The threat must be serious.

•

The threat must be imminent.

•

It must be a threat to public health or public safety, the life of a person or health of a person.

•

The information must be given to someone who can act to prevent or lessen the threat.

•

Only the information necessary to achieve that purpose should be given. It might not be necessary to disclose all of the information.30

The Guidance Notes have assisted mental health professionals in New Zealand to balance the patient’s rights to privacy and confidentiality against other competing social interests including prevention of harm and the information needs of families and carers. The criteria for disclosure of confidential information provide a sound platform upon which Australian jurisdictions can build.

2.5

Privacy and confidentiality requirements in Codes of Conduct of Professional Associations

In most Australian jurisdictions, the right of a patient or a client to have medical confidences respected is widely recognised as an important aspect of a patient’s general right to privacy.

Doctors in private practice, and some other health professionals, are subject to the codes of professional ethics, which require members to keep confidential any information they acquire in the course of caring for a patient. Breach of this duty may render a practitioner liable to disciplinary proceedings by the relevant professional body. Most codes of professional ethics provide for exceptions to the requirement to maintain confidentiality. The information disclosure provisions of the codes of professional ethics most relevant to the mental health field in Australia, detailed in Appendix C, include the following.

Royal Australian and New Zealand College of Psychiatrists Code of Ethics August 1992: Principle Three provides that psychiatrists shall hold information about the patient in confidence but recognises that confidentiality cannot always be absolute. A careful balance must be maintained between preserving confidentiality and the need to breach it on rare occasions in order to promote the patient’s optimal interests and care, and/or the safety 30

New Zealand Privacy Commission (1997), Mental Health Professionals and Patient Information Guidance Notes for Agencies in the Mental Health Sector, prepared for the New Zealand Mental Health Commission, p.8.

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or other significant interests of third parties. Psychiatrists may be released from their duty to maintain confidentiality if they become aware of, and are unable to influence, their patient’s intention to seriously harm an identified person or group of persons. In these circumstances, psychiatrists may have an overriding duty to the public interest by informing either the intended victim(s), the relevant authorities, or both about the threat. If required to disclose information, psychiatrists shall as far as possible divulge only that information relevant to the case at hand.

Australian Medical Association Code of Ethics 1994 Paragraph 6.2.2 envisages that it will be necessary on certain occasions to acquiesce in some modifications from the principle of disclosure of confidential information.

Always, however, the overriding consideration must be the adoption of a line of conduct that will benefit the patient or protect his/her interests.

Royal Australian College of General Practitioners Principle 6 of the Code of Practice for the Management of Health Information in General Practice states that a general practitioner should not disclose personal health information to a third party unless: •

the patient concerned has consented ...; or

•

there is a legal duty for the general practitioner to make the disclosure ...; or

•

there is an overriding public interest in the disclosure of the information.

Any disclosure should be limited to that which is either authorised or required in order to achieve the desired objective.

Australian Psychological Society General Principles, Section III Code of Professional Conduct, July 1994 provides that psychologists must respect the confidentiality of information obtained from persons in the course of their work as psychologists. They may reveal such information to others only with the consent of the person or the person’s legal representative, except in those unusual circumstances in which not to do so would result in clear danger to the person or others. Psychologists must inform their clients of the legal and other contractual limits of confidentiality.

Australian Association of Social Workers The Australian Association of Social Workers has recently issued a revised Code of Ethics. This draft code provides that the social worker will respect the privacy of clients and hold information obtained in the course of professional service in confidence, except where the law demands otherwise or there are ethical or moral reasons not to do so. Social workers will share confidences only with informed consent of clients, except when compelling ethical or legal reasons prevail, for instance: to prevent serious harm to the client; to protect the public from serious harm; or to fulfil legal or statutory requirements. In circumstances where disclosure is necessary, social workers should protect clients’ privacy and reveal only the relevant information required.

26

2 ETHICAL ISSUES AND CONSIDERATIONS

The current code provides similarly that the social worker will only disclose confidential personal information if demanded by law or if there are ethical or moral reasons for doing so.

Australian Nursing Council Inc. The Council’s Code of Ethics for Nurses applies to mental health nurses. Value Statement 4 provides that nurses will hold in confidence any information in a professional capacity, and use professional judgement in sharing such information. The code envisages that exceptions may be necessary in circumstances where the life of the person or of other persons may be placed in danger if information is not disclosed.

Occupational Therapy Australia Code of Ethics of Occupational Therapy Australia, Australian Association of Occupational Therapists states that occupational therapists have a responsibility to always promote and protect the dignity, privacy, autonomy and safety of all patients and clients with whom they come in contact. Occupational therapists should also adhere to local procedures. Beyond the necessary sharing of information with professional colleagues, occupational therapists are to safeguard confidential information relating to patients or clients except where the disclosure of confidential information is permissible where there is legal compulsion or where a patient gives informed consent.

Each of the above ethics codes of the major mental health professional associations in Australia make provision for the disclosure of information. The provisions in each code would lend support to information disclosure in a mental health crisis situation in order to lessen the threat to the safety, life and health of the individual concerned or of another person or lessen the threat to the general public.

2.6

Other ethical considerations

Other ethical considerations emerging in relation to the disclosure of information in mental health crisis situations include the concern of consumers and mental health professionals that any disclosed information be used properly and not broadcasted. The authorities receiving the information should have a duty to ensure the security of the information and that it is only used for the purpose for which it was obtained.

The broadcasting of personal information about a person with mental illness can lead to discrimination and result in other adverse affects. The Mental Health Crisis Intervention Ad Hoc Advisory Group reported that inappropriate stereotypes are being reinforced by media treatment of mental health crisis intervention incidents and of mental health issues in general.

Inappropriate reporting can also lead to ‘copy cat’ situations. There is a need to inform and sensitise the media to the potential impact of inappropriate reporting of people with mental illness, police, crisis teams and crisis situations. The peak bodies of the media industry also have a role to play in considering whether a voluntary code of practice for responsible reporting by the media of mental health issues is required.

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2.7

Conclusions

Confidentiality and privacy are important in the mental health field where fears about disclosure and resulting discrimination may undermine therapeutic relationships and sound clinical casemanagement.

A greater and more systematic, day-to-day emphasis by clinicians in mental health settings both public and private on the importance of negotiating an understanding with consumers about confidentiality and information disclosure issues, would assist to both prevent and safely resolve crises.

The ethical dilemma for mental health professionals in many situations relates to what information should be disclosed and the effect of that disclosure on a person’s right to privacy and on the therapeutic relationship.

Existing Australian health services’ information privacy codes and the codes of ethical conduct of the most relevant professional associations lend in principle support to the disclosure of confidential, personal information to police and other relevant health and community care services in a mental health crisis situation.

The criteria by which the health services information privacy codes and the professional association codes would lend support to the disclosure of confidential information include: •

the prevention or lessening of threat to the safety and health of the person concerned;

•

the prevention or lessening of threat to the safety and health of another person or persons; and

•

the prevention or lessening of risk to public safety (including risk to property that would endanger public safety).

The criteria outlined in the New Zealand Privacy Commissioner’s Guidance Notes for Agencies in the Mental Health Sector provide a sound basis for disclosure of confidential information by mental health professionals: •

the threat must be serious;

•

the threat must be imminent;

•

the threat must be to public health or public safety, to the life of a person or to the health of a person;

•

the information must be given to someone who can act to prevent or lessen the threat; and

•

only the information necessary to achieve that purpose should be given. It might not be necessary to disclose all of the information.

The peak bodies of the media industry have a responsibility to promote understanding throughout the industry of how mental health related issues might be reported responsibly.

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2 ETHICAL ISSUES AND CONSIDERATIONS

2.8

Recommendations

Recommendation One That mental health services ensure that priority is given to working with the consumer while he/ she is well: •

in the context of case management, discussing potential needs of the consumer were her/ his mental health to deteriorate and were there to be the need for intervention to prevent or resolve a crisis situation; and,

•

where the consumer has been an in-patient, the holding of discharge planning conferences to ensure the consumer’s care needs are met.

Recommendation Two That consistent with the National Mental Health Strategy’s renewed client focus and emphasis upon improving the quality and effectiveness of mental health services: •

State and Territory governments provide encouragement to mental health services to increase the emphasis given by clinicians to working with consumers to establish a mutual understanding of confidentiality and information disclosure issues;

•

further work be undertaken by mental health services to identify or develop, implement and evaluate approaches to ‘crisis pre-planning’, giving particular attention to identifying groups that might benefit most from ‘crisis pre-planning’ and identifying situations that might indicate that ‘crisis pre-planning’ is warranted; and

•

mental health services ensure that procedures are in place for consumers to be informed about the uses to which case information might be put in order to prevent and/or safely resolve a situation where there is a serious threat to the health or safety of a consumer or to the health or safety of another person.

Recommendation Three That Commonwealth, State and Territory Governments be encouraged to review their service standards, charters and confidentiality guidelines to ensure that where confidential information needs to be disclosed to police and to other health and community care services by mental health professionals for the purposes of preventing and/or safely resolving a mental health crisis situation, it is clearly addressed in a manner consistent with the recommendations and guiding principles suggested in this report (particularly Section 3.5—Recommendations 7-13 & Section 4.3—Recommendation 15).

Recommendation Four That the principles contained in this report to underpin provisions for the disclosure of information by mental health professionals to prevent and/or safely resolve a mental health crisis situation be included in the National Standards for Mental Health Services (particularly Section 3.5—Recommendations 7-13 & Section 4.3—Recommendation 15).

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TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

Recommendation Five That the major mental health and other health professional associations be encouraged to inform their members including those working in the private sectors of their duties and obligations in relation to confidentiality and information disclosure.

Recommendation Six That the peak bodies for the media industry be encouraged to promote understanding throughout the industry of how mental health related issues might be reported responsibly.

30

3 LEGISLATIVE ISSUES

3

Legislative issues

After identifying some of the key legal questions confronting staff of services that are involved with preventing and resolving mental health crisis situations, this section outlines current confidentiality and information disclosure provisions in mental health, health services and related legislation. The section concludes with recommendations of criteria to justify the disclosure of confidential information to prevent or lessen threat to the safety and health of a person exhibiting mental disturbance and to the safety of others.

3.1

Legal questions and information sharing in mental health crisis situations

Police operational procedures, instructions and standing orders in Australia make it clear that in circumstances that do not involve the disclosure of a person’s criminal history, it is permissible for police to exchange information with mental health professionals irrespective of the nature of the crisis or presenting incident. Mental health professionals lack this legal certainty of their police colleagues. None the less, mental health professionals are having to make decisions about whether to disclose information and the type of information to disclose. If they do decide to disclose information they experience an element of doubt in relation to whether they have acted legally and whether they can be held liable for a breach of duty. Faced with this situation, it is possible that mental health professionals are not prepared to take a risk and decide to disclose the information that could assist to prevent or resolve a crisis.

3.2

Confidentiality and disclosure provisions in mental health services and related legislation

There are many statutory exceptions to the requirement of confidentiality including for example mandatory reporting provisions for certain diseases and conditions, unfitness to have a firearms licence and unfitness to hold a driving licence. Provided the professionals to whom these statutory requirements apply are fulfilling a statutory duty, disclosure of relevant information will not render him/her liable for any legal action. The courts also recognise the defence of disclosure in the public interest. In Australia the notion of ‘public interest’ has not under gone comprehensive analysis by the courts. On the basis of cases determined in jurisdictions other than Australia, the exception to confidentiality other than when provided by statute, is limited to circumstances where disclosure is necessary to prevent criminal or illegal activity or harm to innocent people. Some American31 and English32 cases dealing with the disclosure of information concerning mentally ill or mentally disturbed patients suggest that a doctor may be under a duty to disclose information when another person or persons may be in danger of impending harm.

31

Tarasoff v. Regents of the University of California (1976) 551 P 2d 334.

32

W . Edgell (1989) 2 WLR 689.

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In the renowned Tarasoff case, the Californian Supreme Court raised the possibility of mental health practitioners in that jurisdiction being found liable for the violent actions of their patients.

An Australian legal commentator discussed the implications of this decision on the legal obligation of practitioners to disclose confidential information in the public interest.

In this case [Tarasoff v. Regents of the University of California] a student had been treated as an outpatient at a University Hospital. During therapy the patient informed his therapist that he intended to murder an unnamed woman when she returned from overseas. The therapist was able to identify the woman. The therapist decided that the patient should be detained and asked the campus police to take him into custody. The patient was questioned and later released when he promised to keep away from the woman. Two months later the patient murdered the woman. The therapist and his supervisors were sued by the woman’s parents for failure to inform them of danger.33 Although the legal system in Australia is different to that in the United States of America, the case raises the need for mental health and other health professionals to be provided with clear guidelines and instructions about confidentiality and information disclosure. The case also raises the questions as to whether the need to disclose confidential information in mental health situations should be addressed specifically through statute law.

The provisions for confidentiality and information disclosure contained in Australian mental health and related legislation are outlined in Appendix D. With the exception of the Northern Territory, mental health statutes do not specifically or clearly address the duties and obligations of mental health professionals in relation to the disclosure of information in crisis situations or in other serious incidents. The situation is summarised as follows: •

the mental health legislation of Tasmania, South Australia and Western Australia, possibly provide a legal basis for the disclosure of information in a mental health crisis situation, but they do not do so clearly;

•

the mental health legislation of New South Wales, Victoria and Queensland do not specifically address information disclosure in mental health crisis situations or in similar situations and do not appear to provide a legal basis for the disclosure of information in such situations;

•

the mental health legislation in the Australian Capital Territory does not contain general provisions that specifically address information disclosure by mental health professionals in the course of their daily duties—however, the Health Records (Privacy and Access) Act 1997 appears to lend support to information disclosure in mental health crisis situations.

Though there is a lack of legal clarity about the obligations of mental health professionals to disclose information in crisis situations it is unlikely that a mental health professional who disclosed information in good faith with the conviction that the disclosure was necessary and consistent with his/her professional code of conduct would be held liable for breach of duties.

Most mental health or health services statutes contain ‘good faith’ exemption from liability clauses.

33

Neave, M. (1987), ‘AIDS-Confidentiality and the duty to warn’, University of Tasmania Law Review, Vol. 9, No. 1 pp. 1-31 cited in Cook, H. (1996), op.cit. p. 16. See also: Abadee, A. (1995), ‘The Medical Duty of Confidentiality and Prospective Duty of Disclosure: Can They Co-Exist?’, Journal of Law and Medicine, Vol. 3., p. 84-87.

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The Northern Territory Mental Health Act 1998 (assented to but not yet proclaimed) makes the following provisions in relation to the disclosure of information in a mental health crisis situation: s 91(2) Information ... may be disclosed— (f)

(g)

(h)

to a member of the Police Force where the person to whom the information relates is in a situation that requires immediate intervention and the person is likely to cause imminent harm to self, to a particular person or any other person, or represents a substantial danger to the general community and the information is relevant to the safe resolution of the situation; to the Commissioner of Police or a member of the Police Force nominated by the Commissioner ... where the person disclosing the information reasonably believes that the person to whom the information relates may harm self or represents a danger to the general community; when it is required to prevent or lessen a serious or imminent threat to the life or health of the person, another person or the general community.

The duties and obligations of mental health professionals to disclose information to police in crisis situations are specifically and clearly addressed. The provisions are comprehensive, practical and consistent with privacy principles, health services information privacy principles and with the codes of ethical conduct of professional associations.

3.3

Grounds justifying the disclosure of confidential information to prevent and resolve crises

Upon analysing privacy codes, information disclosure principles and the provisions of the code of conduct of each of the major professional bodies involved with mental health care a consensus emerges about the grounds that might justify the disclosure of confidential case information. The major grounds centre on preventing and lessening a serious threat to the health and safety of a person who exhibits mental disturbance and to the safety of other persons.

Mental health and other health professionals need to have confidence in their capacity to disclose information to each other, to police and to relevant community care services in order to prevent or resolve a crisis situation arising from a serious deterioration in the mental condition and/or health of a person.

The Committee proposes that the grounds justifying disclosure of confidential information to police and to other relevant health and community care services by mental health professionals for the purposes of preventing and/or safely resolving a mental health crisis situation include the following situations where the disclosure is necessary to: •

prevent or lessen the threat to the safety and health of the person concerned;

•

prevent or lessen the threat to the safety and health of another person or persons; and

•

prevent or lessen the risk to public safety in general (this may include the safety of property that would endanger public safety).

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TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

The Committee proposes that criteria for assessing the appropriateness of information disclosure would include: •

there is a current risk that the person’s mental and/or physical condition will further deteriorate and will thereby seriously threaten the health and safety of that person or of another person;

•

the threat is serious;

•

the threat is current;

•

the threat is imminent;

•

it involves a threat to public health or public safety and to the health and safety of a person(s);

•

the information is given to someone who can act to prevent or lessen the threat;

•

only the information necessary to achieve that purpose is given; and

•

the confidential information disclosed by authorised mental health professionals be limited to information that will prevent a crisis and/or safely and rapidly resolve a crisis.

The concept of preventing and lessening serious threat or risk to health and safety is not foreign to mental health law. Rather, this concept has a long history and there is considerable, relevant case law. Preventing and lessening serious threat to health and safety are key planks of criteria for involuntary detention and treatment in the mental health legislation of most Australian jurisdictions. Whilst these terms in the context of information sharing in a mental health crisis situation would be interpreted differently it is useful to reflect on definitions of ‘serious threat’ in relation to involuntary detention. This report does not envisage that the definitions of ‘serious threat’ in relation to involuntary detention that are discussed below would be used as a basis for deciding whether information is provided.

Mental health review bodies and courts of review have defined on numerous occasions, and for the purpose of involuntary detention, terms such as: •

protecting the health of the person who appears to be mentally ill; and

•

protecting public safety or the protection of the public.

For example, examining some of the major determinations of the Victorian Mental Health Review Board sheds light on how these concepts might be defined for the purpose of preventing and safely resolving mental health crisis situations. The Victorian Mental Health Review Board considered the meaning of the term, ‘protection of members of the public’, in the review of “MW”, an involuntary patient in 1987. The Board determined that ‘protection of the members of the public’ applied to the prevention of injury of people who make up the public and that in this context: ‘injury’ means physical and psychological or emotional injury ... ... if a person suffering from a mental illness sets fire to buildings such as houses or schools or tampers with the brakes of a neighbour’s car when such conduct was caused by that mental illness it would be reasonable to infer that there would be significant risk of injury to members of the public ...

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3 LEGISLATIVE ISSUES

The situation becomes more difficult when one examines the effects of the mentally ill person’s conduct on friends, neighbours and relatives. The Board accepts in principle that caring for mentally disordered relative can impose an enormous physical and mental strain on relatives. It accepts that such strain can, if severe enough, constitute an injury from which friends, relatives or neighbours and members of the public would need to be protected. The major problem is to determine what level or degree of strain is sufficient.

In the Board’s opinion mere inconvenience, embarrassment or intermittent strain are not enough. What is necessary is that there be significant impairment of mental and physical health ... of a permanent or temporary nature ...

Similarly in the case of emotional and financial suffering that can be caused to friends and relatives caring for a mentally ill person, the Board accepts that this can give rise to significant impairment of physical and mental health, and if that stage is reached then the need to protect members of the public ... arises.34 This decision and similar decisions in relation to the grounds for involuntary detention view protection of the public or of public safety as including protection from physical, emotional and psychological injury and injury to property where such damage would endanger the safety of people.

The Victorian Mental Health Review Board in the review of BC an involuntary patient also in 1987 determined that a person should be detained for the sake of their ‘health’ if either: 1.

there is a real risk that, without treatment, the person’s physical condition will deteriorate significantly and that this deterioration is a product of the mental illness; or

2.

there is a real risk that, without treatment, the person’s mental condition will deteriorate significantly and to such an extent that their future rehabilitation is put in question; or

3.

there is a real risk that, without treatment, the behavioural manifestations of the mental illness will be such as to result in the person’s isolation from the community, in which he or she lives, interacts and is sustained.35

This determination and other similar decisions36 include the risk of serious deterioration in the person’s mental condition and/or physical condition in the formulation of ‘the health’ of the person concerned.

The determinations discussed above were in relation to situations where the issue in question was whether a person should be deprived of his/her liberty and treated against his/her will. This is a different situation from the one in question here; namely, where consideration is being given to whether confidential information should be disclosed in order to prevent or safely resolve a crisis situation and to lessen the risk to the person’s health and safety and the safety of others. It is probable that in relation to information disclosure in mental health crisis situations, the courts would apply broader formulations of the concepts of ‘protection of health’ and ‘protection of safety’.

34

Victorian Mental Health Review Board, Decisions of the Mental Health Review Board Victoria: 1987-1991, Melbourne, pp. 19-20.

35

Ibid, pp. 29-31.

36

See PY v RJS and Others [1982] 2 NSWLR 700.

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A question arises as to whether legislative amendment is required or desirable or whether it would be sufficient to address information disclosure primarily through health information privacy codes and service standards. In the short term, change in information management and confidentiality practice would be more quickly promoted through specific provisions in privacy codes and service standards. However, if current information disclosure provisions in legislation were not brought into line with privacy codes and service standards, mental health and other health professionals would still be left in a situation of uncertainty where they are confronted by conflicting requirements. Importantly, the legislative provisions would have precedence over the provisions in codes and service standards.

A further concern about pursuing legislative change is whether professionals would feel an obligation to disclose information arising from negative consequences if they were not to disclose information. The Committee is of the view that clarity and consistency in confidentiality and information disclosure provisions and requirements is preferable to uncertainty and inconsistency. The apprehensions and questions of professionals and areas of misunderstanding are best addressed through education and training and through the monitoring of privacy codes, service standards and legislative provisions.

A further question arises as to the scope of any required legislative provisions concerning information disclosure to prevent or resolve crisis situations. Consideration needs to be given as to whether health services legislation as well as mental health legislation should contain information disclosure provisions on the basis that not all crisis situations will involve a person with mental illness. Crisis situations requiring information sharing between health professionals and police may involve people with a wide range of different conditions including for example, drug and/or alcohol mental disturbance, acquired brain damage, dementia and mental disturbance related to medical conditions.

Service standards and guidelines for confidentiality, information management and information disclosure and protocols between services would compliment legislative provisions by detailing: •

the type of information that can be disclosed;

•

what can be done with the information by police or by staff of another service once the current situation has been resolved;

•

how it can be used in the future;

•

to whom it can be disclosed and for what purpose; and

•

how long the information can be retained.

3.4

Conclusions

There is a lack of clarity in most Australian jurisdictions with the exception of the Northern Territory and most likely the Australian Capital Territory as to: •

whether or not mental health personnel can legally disclose information to police in a mental health crisis situation; and

•

the type of confidential, personal information that can be communicated.

This lack of legal clarity casts an element of doubt over the information disclosure provisions contained in existing protocols between police and mental health services.

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3 LEGISLATIVE ISSUES

In absence of legal clarity, mental health professionals cannot be confident about the decisions they make in relation to information disclosure and cannot be expected to operate at an optimal level.

In the long term it is desirable for information disclosure provisions in legislation to be consistent with those contained in service standards, guidelines and joint service protocols.

Clarity and consistency in confidentiality and information disclosure provisions and requirements is preferable to uncertainty and inconsistency.

3.5

Recommendations

Recommendation Seven That Commonwealth, State and Territory Governments be encouraged to review information disclosure provision in mental health legislation and health services and other relevant legislation to ensure that where confidential information needs to be disclosed to police and to other health and community care services by mental health professionals for the purposes of preventing and/or safely resolving a mental health crisis situation, it is clearly addressed and consistent provisions are detailed for: •

information disclosure in situations where the disclosure is necessary to: -

prevent or lessen a serious and imminent threat to the safety and health of the person concerned; or prevent or lessen a serious and imminent threat to the safety and health of another person or persons; or prevent or lessen a serious and imminent risk to public safety in general (this may include the safety of property that would seriously endanger public safety); and

•

specifying criteria to assess whether the person’s current condition warrants the disclosure of confidential case information, including for example, that: the health and safety of that person or of another person is seriously threatened by the person’s current condition; or there is a current risk that the person’s mental and/or physical condition will further deteriorate and will thereby seriously threaten the health and safety of that person or of another person; and the threat is serious; and the threat is current; and the threat is imminent; and

•

the threat involves a risk to public health or public safety and to the health and safety of a person(s); the information is given to someone who can act to prevent or lessen the threat; and

•

only the information necessary to achieve that purpose is given.

Recommendation Eight That the confidential information disclosed by authorised mental health professionals be limited to information that will prevent a crisis and/or safely and rapidly resolve a crisis.

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Recommendation Nine That a record of the information that was disclosed be made in the person’s case file and be communicated, where clinically advisable, to the consumer at a time judged appropriate by the mental health service.

Recommendation Ten That the requirements for formally recording information that was disclosed and for communicating that information to the consumer be contained in the service and standards charter of mental health services.

Recommendation Eleven That police ensure the security of confidential case information obtained from mental health professionals and the security of any record made of that information.

Recommendation Twelve That police ensure that confidential case information is used only for a purpose that is directly relevant to, and consistent with, the purpose for which it was first obtained.

Recommendation Thirteen That before using the confidential case information in the future, that police confirm with mental health services the present accuracy and relevance of that information.

Recommendation Fourteen That at an appropriate future point, the principles contained in this report to underpin provisions for the disclosure of information by mental health professionals to prevent and/or safely resolve a mental health crisis situation be included in the National Rights Analysis Instrument used for assessing the compliance of Australian mental health legislation with relevant human rights instruments.

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4 OPTIONS FOR ESTABLISHING AN INFORMATION/REFERRAL NETWORK

4 Options for establishing an information/referral network This section commences with a discussion of the limits to proactive data collection by police about people with mental illness and other mental disorders. Recommendations are then made for improving access to information about mental health services for consumers, their carers and relatives, other members of the public and for professionals whose work involves them with responding to the needs of people with mental health care problems.

4.1

Pro-active police data collection and the rights of people with mental illness

To prevent or safely resolve a mental health crisis situation, police, mental health professionals and staff of other relevant health and community care services require ready access to information about the person at the centre of the situation. The Final Report of the Mental Health Crisis Intervention Ad Hoc Advisory Group stated: ... it should be emphasised that in discussing the benefits of increased access to information the group in no way advocated the establishment of a ‘register’ of people with mental illness and this report should not be misconstrued to this end. (p. 10) Direct police access to databases containing the personal records of consumers of mental health services is not appropriate on several grounds including the following: •

a consumer’s right to privacy and confidentiality would be unreasonably breached;

•

safe and effective practice would not be ensured as police are not trained to correctly interpret the clinical information;

•

a register would not necessarily include the people who come to be involved in crisis incidents requiring police intervention; and

•

the requirement of an unreasonable expectation of the capacity of mental health professionals to determine the degree or level of risk to safety presented by a particular individual.

Further, the Federal Privacy Commission’s Information Privacy Principles Guidelines indicate that pro-active policing by a Commonwealth law enforcement agency through the gathering of information about individuals not engaged in any suspicious or criminal activity in the hope of identifying cases of a possible, future breach of law is not justified by the information disclosure exemptions of the Federal Privacy Act.37 The Privacy Commission strongly encourages agencies to conduct data-matching only with express legislative authority.38 37

Office of the Privacy Commissioner Australia, Information Privacy Principles, Guideline 37, (Privacy Act 1998).

38

Ibid.

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TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

Data-matching exercises, including for example, a register of mentally disturbed people, poses particular risks to the privacy of people’s personal information because such exercises usually involve the disclosure and recording of personal information about large numbers of people, most of whom are of no interest to the data collecting agency. The Committee has concerns about the proactive collection and recording by police of confidential case information about people with mental illness or with other mental conditions where an offence has not been committed or where an offence is not suspected or alleged. Where police have existing databases containing confidential case information of this nature, the Committee is concerned that care is taken to ensure that: •

the information is collected, held and used in a manner consistent with privacy principles and good practices for the fair handling of personal information;

•

confidential information about a person’s mental condition is neither interpreted by police themselves nor used without reference to specialist clinical advice and clinical expertise; and

•

where seeking specialist clinical advice care is taken to ascertain the currency and accuracy of the recorded information.

A more effective approach would be the development of mechanisms to ensure timely police access to mental health professionals who can correctly interpret clinical records, provide advice about how to best handle the individual and if necessary, place the police in contact with people who know the individual well and who are best placed to provide advice about how to resolve the situation safely (see Section 4.2).

Following on from the work of the Ad-Hoc Committee, the current committee discussed whether, in certain circumstances, mental health services could usefully establish internal ‘flagging systems’ by which ‘flags’ are placed on the case records of consumers who are thought to pose a possible risk to their own safety and/or to the safety of others. Anecdotal evidence presented to the Committee indicated that flagging systems of this nature have enabled a mental health service to ensure that staff are informed where necessary of the risks posed by particular consumers. These systems are largely being used for internal purposes and the ‘flag’ is only seen by staff of the mental health service. On some occasions, it has been necessary for staff of the mental health services to communicate the flagged information to another professional having a legitimate interest in, or involvement with, the person to whom the information relates.

In some instances, the ‘flag’ comprises a highly visible notation on a consumer’s case records, while in other instances, there is a notation on computer based records.

It is of concern to the Committee that currently there is little or no information about how existing flagging systems operate, including for example: •

how the flagging systems are set up;

•

the level and type of technology used;

•

who does the flagging and what information is flagged;

•

who sees the flag;

•

the level of formality used;

•

how the flagged information is updated; and

•

whether the flagging systems are evaluated.

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4 OPTIONS FOR ESTABLISHING AN INFORMATION/REFERRAL NETWORK

There is little information other than anecdotal information about the effects of flagging systems. For example, little is known about the propensity of existing flagging systems to give rise to false positives and false negatives. Psychiatric literature is replete with examples of the stigmatising effects of false positives including those of stigma and inappropriately restrictive treatment and of the dangerous effects of false negatives including a misplaced sense of security among staff.

The Committee has not made a specific recommendation in relation to the question of whether flagging systems should be established by mental health services. Rather, the Committee has sought to acknowledge that such flagging systems have been established by mental health services and has sought to promote: •

the application of privacy principles and principles of good practices for the fair handling of personal information;

•

knowledge about the circumstances warranting consideration of the establishment of a flagging system; and

•

clinical knowledge and expertise in relation to identifying the possibility of the occurrence of high-risk situations.

Where a mental health service views the establishment of a flagging system on case records as necessary and appropriate, the Committee recommends that the service charter and relevant confidentiality and information management guidelines of that mental health service ensure that: •

every reasonable effort has been made to engage a consumer in the development of a disclosure pre-plan;

•

every reasonable effort has been made to obtain, in the first instance, the consent of the person involved to having particular information ‘flagged;’

•

the grounds for exemption from obtaining consent are clearly stated, communicated to consumers and understood by record-keepers;

•

consumers have a right of reply and a right to complain through a formal mechanism;

•

there are processes in place for assessing the current accuracy of the flagged information and for removing both the ‘flag’ and the flagged information when they are no longer required;

•

there is a system for recording information disclosure in the personal case notes and for communicating this disclosure to the consumer at an appropriate point;

•

there is an appropriate level of security of the flagged information;

•

the uses to which the flagged information can be used are circumscribed to the lessening of serious threat to the consumer and/or other people, are clearly stated and are communicated to mental health professionals and to other health professionals;

•

controls are in place to ensure the use to which the information can be put both during and after a crisis;

•

the type of information that can be disclosed to police and other health and community care services to prevent and manage a crisis situation is clearly stated;

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•

processes and protocols for the disclosure of flagged information are clearly stated and communicated;

•

there is a duty on the agency to whom the information is disclosed, to only use the information for the purpose for which it was sought and to ensure that the information is not broadcast or otherwise misused;

•

the system operates in an accountable fashion; and

•

where clinically advisable, the information disclosed is communicated to the consumer at a time judged appropriate by the mental health service.

The implementation of some of these principles and safeguards are not cost neutral and may pose difficulties for mental health services. An example, is the requirement for mental health services to communicate the disclosure of information to the consumer at an appropriate point.

Here, clinical judgement will be needed to balance the consumer’s right to know with ensuring that the person’s health, treatment and rehabilitation is not adversely affected and that the safety of the person concerned or of any other person is not placed at risk.

The adoption and implementation of the above principles and requirements would ensure that where mental health services have established flagging systems on personal case records, they comply with privacy principles and best practices in the management of confidential patient information of health services.

4.2

The establishment of an information/referral network

How might police and members of other services be ensured timely access to the mental health professional who can best advise and who can provide the most pertinent information about the consumer involved with the crisis situation? One option is to build on current work being undertaken to enable members of the public throughout Australia to access information about mental health services via telephone or via the internet; and develop mental health services information databases and information services. Consideration should be given to building on and linking to Commonwealth and State/Territory initiatives in this area.

Linked but separate to general information services could be an information service specifically for mental health professionals and other health professionals, police and community care workers. This information service would be specifically for professionals whose work brings them into contact with people with mental health problems. The service would not contain information about individual cases. Rather, it would contain details of how mental health services throughout might be contacted in a crisis or emergency situation. It would be most effective if it were both Internet based and accessible via a 1800 telephone number twenty-fourhours a day. The service would provide professionals with a single phone number and a single web-site address that they can use for the purpose of being directed to the telephone number they require. The service’s database being website based would be easily maintained and updated.

An information service of this nature, would assist case management, continuity of care and the prevention and safe resolution of mental health crisis situations by providing ready access to the contact details of mental health services which in turn might be able to provide relevant information.

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Mental health services in each jurisdiction could also use the information service for providing information about how to contact personnel who have statewide responsibilities for assisting with the resolution of crises, critical incidents and incidents requiring highly specialised advice.

Clearly, this information service should include private and non-government mental health services.

Mental health services in each State/Territory would need to provide service contact details, to update this information regularly and as necessary and to ensure continuous access to this information. Work of this nature is currently under way in a number of jurisdictions. Attention would need to be given to the development of mechanisms for contacting mental health services that are not currently operating on a twenty-four hour basis. For some States/Territories this will be a major task and will pose practical problems and have resource and service development implications. This will be particularly be the case for some of the geographically larger states that have greater numbers of small mental health services and higher proportions of rural and remote communities.

Mental health services providing information to assist with the prevention or resolution of a mental health crisis situation would be required to keep a record of the information so provided including details of: •

what was communicated, to whom, when and by whom;

•

for what purpose the information was communicated; and

•

with what outcome (where possible).

Police services and other services obtaining information from mental health services would need to ensure that discussions are held with authorised mental health professionals via a secure telephone line and have protocols in place to ensure that information so gained is not publicly broadcast or misused. Protocols and operational procedures would also need to ensure against the inappropriate, onward disclosure of confidential information received from mental health services.

Mental health services would need to have in place protocols for the recording the use of case information that are based on the health services information privacy principles and mental health service standards and that are tailored to the mental health system’s special circumstances. Mental health services also require internal procedures to ensure that all consumers are aware of the use to which case information might be put. Consistent with the principles recommended in Section 4.1, procedures are also required for mental health professionals to proactively seek the informed consent of consumers about the forwarding of information to police in crisis situations and more generally, to other mental health professionals, health professionals and other workers involved with the person’s case management.

The emphasis would be upon obtaining the person’s consent to the forwarding of information and of enunciating their wishes about the type of information to be exchanged and the procedures to be followed during a crisis. It would be necessary to inform the consumer that while every effort would be taken to comply with their wishes, a crisis situation may give rise for decisions to be made that are contrary to their wishes. Where clinically advisable, this record should be communicated to the consumer at a point judged appropriate by the mental health service. The consumer would have right of reply and the right to lodge a formal complaint. It is important for the outcome of information disclosure to be documented and monitored.

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Mental health services would need to ensure that all staff receive training in the ethical management and use of personal case information and be made aware of legislative provisions enabling the disclosure of case information to police and other mental health and health professionals in crisis situations where there is a serious threat to the health or safety of the consumer or to the safety of another person.

Having protocols and information systems in place, mental health services could then discuss with consumers, carers and other legitimate stakeholders, the need for and possibility of flagging certain case information in order to prevent or resolve a crisis. This information would only be accessed by authorised personnel of the mental health service who further would only be able to disclose the information in situations involving threat to the person’s health and safety or the health and safety of others.

4.3

Recommendations

Recommendation Fifteen That where the establishment of a flagging system on clinical records to provide warning of the possibility of harm to a client or to another person is viewed by a mental health service as being necessary, the mental health service ensure that the following principles and requirements are included in its service charter and its relevant confidentiality and information management guidelines: •

every reasonable effort has been made to engage the consumer in the development of a disclosure pre-plan;

•

every reasonable effort has been made to obtain, in the first instance, the consent of the person involved to having particular information ‘flagged;’

•

the grounds for exemption from obtaining consent are clearly stated, communicated to consumers and understood by record-keepers;

•

consumers have a right of reply and a right to complain through a formal mechanism;

•

there are processes in place for assessing the current accuracy of the flagged information and for removing both the ‘flag’ and the flagged information when they are no longer required;

•

there is a system for recording information disclosure in personal case notes and for communicating this disclosure to the consumer at an appropriate point;

•

there is an appropriate level of security of the flagged information;

•

the uses to which the flagged information can be used are circumscribed to the lessening of serious threat to the consumer and/or other people, are clearly stated and are communicated to mental health professionals and to other health professionals;

•

controls are in place to ensure the use to which the information can be put both during and after a crisis;

•

the type of information that can be disclosed to police to inform the prevention or management of a crisis situation is clearly stated;

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•

processes and protocols for the disclosure of flagged information are clearly stated and communicated;

•

there is a duty on the agency to whom the information is disclosed, to only use the information for the purpose for which it was sought and to ensure that the information is not broadcast or otherwise misused;

•

the system operates in an accountable fashion; and

•

where clinically advisable, the information disclosed be communicated to the consumer at a time judged appropriate by the mental health service.

Recommendation Sixteen That the establishment of an information service, accessible via a single 1800 telephone number and website be considered by the Commonwealth and State and Territory governments under the Second National Mental Health Plan. That a key purpose of this information be: •

providing mental health and other health professionals, police services and other health and community care services with information about how to contact mental health services which in turn might be able to provide relevant information to assist with the prevention or resolution of a mental health crisis situation.

Recommendation Seventeen That this information service be accessible on a twenty-four-hour, seven-days a week basis.

Recommendation Eighteen That in the development of this information service specifically for professionals, consideration be given to developing links with existing networks which should result in all Australians, wherever they are located, being able to obtain information about mental health services.

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46

5 PROTOCOLS FOR INFORMATION SHARING

5 Protocols for information sharing between police services and mental health services in critical incidents and crisis management This section commences with a discussion of the scope of existing joint service protocols between police and mental health services. The information disclosure provisions of the joint service protocols are then outlined and reviewed. In conclusion, recommendations are made for the enhancement of existing joint service protocols between police and mental health services.

5.1

The scope of existing joint police/mental health service protocols

Generally, the memorandums of understanding between police services and mental health services in Australian jurisdictions and their joint service protocols differentiate the roles of both parties in a crisis accordingly: •

police have the responsibility to ensure the safety of all parties; and

•

mental health staff within agreed roles, address the mental health needs of the consumer and carer.

The protocols emphasise the need to balance the right of the consumer to privacy and confidentiality with the duty to warn and attempt to ensure the safety of the consumer him/ herself, crisis response personnel and other people (for example, see the Memorandums of Understanding between police and mental health services in New South Wales, Victoria39 and the Australian Capital Territory). The Mental Health Working Protocol between Tasmania Police and the Department of Community and Health Services emphasise the need for both agencies to work together to resolve issues surrounding confidentiality.

As discussed above, the Health Department in Western Australia has issued an Operational Instruction to health care professionals in relation to patient confidentiality. The document addresses the question of when disclosure of confidential information is appropriate and concludes that: 39

The Joint Service Protocol between the Victoria Police and the Victorian Department of Human Services, is under review.

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Disclosure in the public interest is the most important and controversial exception to a health professional’s duty of confidentiality ...

While the notion of public interest is flexible, there are no clearly defined rules governing when disclosure is permitted and when it is not. It may therefore be difficult for a health professional to determine where the balance of public interest lies in any given case.

The WA Operational Instruction recognises circumstances of threat and identifiable risk of danger to the person or public where it would be permissible to disclose confidential information to a responsible agency such as the police: Only the facts necessary to reduce or eliminate that risk of danger should be disclosed.

Disclosure to a ‘proper’ authority is not disclosure to the world at large. The risk to the public or an individual must be a ‘real risk’, and disclosure should be confined to exceptional circumstances. If disclosure is made, health professionals must ensure the recipient of the information is a responsible authority ... ... Each case requires an assessment of its particular circumstances and generally before information is disclosed, advice should be sought from the Legal Services Branch.

Seeking legal advice in a mental health crisis situation would be problematic. The Operational Instruction’s discussion of the complexity and difficulty of determining ‘public interest’ may deter some mental health professionals from disclosing the very information required to resolve the situation.

The protocols in place in New South Wales, Victoria and the Australian Capital Territory outline circumstances indicative of when police should contact mental health services and when mental health services should contact police and the type of information that can be exchanged. A crisis situation or high risk situation requiring police to consult with, or refer to, mental health services include situations where a person is known to have a mental illness or appears to be mentally disturbed and: •

has a history of violence or is a current threat to the safety of others;

•

is a serious threat to property;

•

shows a high level of self neglect or serious mismanagement of personal affairs;

•

has a high level of distress;

•

has a history or presents a current threat of deliberate self harm or a risk of suicide;

•

is behaving in a highly unusual way; or

•

is considered by police to require the immediate attention of a mental health service for assessment and possibly admission to an in-patient service (see for example, the Memorandum of Understanding between police and mental health services in New South Wales, the Australian Capital Territory and Victoria).

The protocols generally provide that the urgent situations that require mental health services to request police attendance and assistance include situations where the person is thought to be a danger to self and/or to others and/or to property.

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Protocols also need to address the different categories of consumers who while exhibiting disturbed behaviour may come to the attention of police in a crisis situation. The major groups include the following: •

people who have been previously involved with police and in relation to whom police have some strategic information, who may or may not be known to public mental health services and who require assessment and follow-up by mental health services;

•

people known to a jurisdiction’s public mental health services but not known to police;

•

people who are known neither to police nor mental health services but who are possibly: (a) (b) (c)

receiving treatment from a general practitioner, a private psychiatrist or another private therapist or from a private health care agency; known to an inter-state public mental health service; and/or receiving services from another public health or community agency (eg a community health centre, a drug and alcohol service, and an aged care facility).

In relation to each of these categories, the joint service protocols could usefully outline the responsibilities of: •

mental health services in providing or helping police obtain the information and assistance they require;

•

police in referring a person to mental health services or to another health or community service;

•

both services in handing over and/or following-up a situation effectively.

Emphasis should be upon mental health services, where appropriate, seeking to engage the person in the development of crisis and case management plans or of assisting police to link the person to an appropriate health service or a community agency that can offer assessment, treatment, case management and/or support.

A person in a mentally disturbed state who comes to the attention of police and who is thought to pose a risk to him/herself or to another person, may not be mentally ill but might be affected by one or more of a number of conditions including: •

drug and/or alcohol and other substance abuse;

•

acquired brain damage;

•

a dementing illness;

•

intellectual disability;

•

behavioural or personality disorder; and

•

conditions arising from a medical condition eg HIV/AIDS, cerebrovascular disease, neurological disorders etc.

Clearly, police are not trained to determine the causes of disturbed behaviour. Rather, their role is to recognise disturbed behaviour that poses a risk to safety and seek assistance from an appropriate service. Naturally enough, and because of the presenting disturbed behaviour, police will most likely in the first instance seek the assistance of mental health services in a crisis

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situation or when there is a serious incident. The joint service protocols must address the roles and responsibilities of mental health services in assisting police to determine the appropriate health care or community agency to which the person should be referred. To avoid misunderstanding about the capacity of mental health services to act as front-line generalist health and community crisis workers, it is important the parameters of the roles and responsibilities of mental health professionals be recognised and understood. Protocols between services in rural and remote services will need to be cognisant of local contingencies including for example, service mix and availability, staffing levels, distance and geography etc.

5.2

Existing protocols for the disclosure of information to police by mental health services

The Mental Health Working Protocol between Tasmanian Police and the Department of Community and Health Services has general provisions for the disclosure of confidential, personal information: In accordance with general advice provided by Senior Crown Counsel, doctors employed by the Department of Community and Health Services (Mental Health) shall provide Tasmania Police upon request with such information as might be necessary for police to safeguard themselves and/or others and/or property, or as might be necessary to protect the patient from himself or herself.

The joint service protocols of New South Wales, the Australian Capital Territory and Victoria address the question of the disclosure of personal information according to whether police or mental health services initiated the referral or request information. In a crisis or emergency situation involving a person with mental illness or mental disturbance where police have initiated the referral or have requested information and assistance from mental health services, the protocols tend to not specifically outline the type of information that mental health personnel are authorised to communicate to police over the phone in the first instance. For example, the protocols between police and mental health services in New South Wales, Victoria and the Australian Capital Territory similarly provide that: •

where a mental health service response is not thought necessary, that mental health personnel will provide information to assist police with linking the person to an appropriate service or will provide general advice;

•

where it is decided that a mental health response is appropriate but a psychiatric assessment is not immediately possible, mental health staff should attend the scene of the incident and provide consultation to police members to assist them in managing the situation; and

•

where mental health services consider psychiatric assessment to be urgently required, the specific arrangements will be discussed with police.

The term ‘general advice’ is not defined. Neither are details given about the type of information that police might reasonably require to manage the situation. This lack of specificity could possibly discourage mental health services’ personnel from giving the type of information that actually helps police manage the situation. However, the protocols envisage that the development of local protocols and close working relationships would assist to ensure: appropriate levels of communication between services depending on the nature of the incident.

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4 OPTIONS FOR ESTABLISHING AN INFORMATION/REFERRAL NETWORK

Sound working relationships at a local level it is assumed would also encourage mental health services to warn police of situations involving serious risk to the safety of a person. Even with enhanced local working relationships, greater clarity would appear necessary about the type of information that mental health services can give police over the phone to help them manage the situation in the first instance.

The protocols of New South Wales, Victoria and the Australian Capital Territory have similar provisions for information disclosure when the referral or request for assistance is initiated by mental health services. In preparing the police to assist, the protocols generally authorise mental health services to disclose to police the following range of information: •

where the assistance is required and the location of relevant mental health staff;

•

who else is present;

•

what the current problem is and the degree of urgency;

•

whether weapons are present or suspected;

•

whether the person is affected by drugs/alcohol;

•

whatever details about the person that would enable police members to more accurately determine the nature of the situation;

•

cultural aspects including language requirements; and

•

any other available background information that would help police make decisions on how to manage the situation.

It is noticeable that in relation to situations where mental health services have initiated the involvement of police, the protocols are more detailed and specific about the type of personal information that can be disclosed by staff of mental health services. Where the police are the initiators of the contact with mental health services, the joint service protocols could usefully give greater attention to the information needs of police in a crisis situation involving a mentally ill or mentally disturbed person.

Joint service protocols between mental health services and police services should also specify: •

what can be done with the information once the current situation has been resolved;

•

how it can be used in the future;

•

to whom it can be disclosed; and

•

how long the information can be retained.

In particular, the protocols should stipulate that police are required to ensure: •

the security of confidential case information obtained from mental health professionals and of any record made of that information;

•

the information obtained is used only for a purpose that is directly relevant to, and consistent with, the purpose for which it was first obtained;

•

that before using the information in the future, that police confirm with mental health services the present accuracy and relevance of that information.

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The establishment and maintenance of sound working relationships between police, mental health services (public, private and nongovernment), other relevant services, consumer groups and community groups are critical to the effective implementation of joint service protocols. It is important for police and mental health services to meet directly with consumers and consumer organisations to enhance understanding of mental health crisis situations involving police.

5.3

Conclusions

The development of joint service protocols between mental health services and police and other relevant services will assist to enhance the appropriateness and level of co-ordination in the system of care for people with mental illness.

Encouraging the participation of the private psychiatric and the private health sectors in the development of joint service protocols is critical.

Joint service protocols between mental health services and police and other relevant services are required at both State/Territory wide levels.

Existing joint service protocols between police and mental health services require greater specificity in relation to the information that can be given to police by mental health services in situations where police have initiated contact with mental health services about a crisis situation that appears to involve a mentally ill or mentally disturbed person.

Given that it is often the police who attend situations involving a person whose mental health is deteriorating or the police who must manage a crisis situation until mental health services attend or until assistance is received from a more appropriate source, it would appear important for the protocols to be equally specific about the type of personal information that can be disclosed to police irrespective of whether they or mental health services have initiated the referral.

Joint service protocols between mental health services and police and between mental health services and other relevant services should address the duties and obligations of mental health professionals in relation to the disclosure of information in a crisis situation in a manner consistent with the recommendations made in this report in relation to privacy guidelines, service charters and mental health legislation (particularly Section 3.5 and Section 4.3).

Sound working relationships between police services, mental health services and other relevant services at the local level are critical to the prevention and resolution of mental health crisis situations.

Direct meetings between police services, mental health services, consumers and consumer organisations will assist to enhance understanding of mental health crisis situations involving police.

5.4

Recommendations

Recommendation Nineteen That consistent with the Second National Mental Health Plan’s focus on partnerships in service reform and delivery, State and Territory governments provide encouragement to mental health services and police services throughout Australia to establish or strengthen joint service protocols at both State/Territory wide and local levels.

52

5 PROTOCOLS FOR INFORMATION SHARING

Recommendation Twenty That State and Territory governments also provide encouragement to mental health services including those in the private sectors to establish or strengthen joint service protocols with other relevant health services (eg Divisions of General Practice and ambulance services) and community care services at both State/Territory and local levels with a view to preventing mental health crises by improving on-going treatment through continuity of care, case management and co-ordination between service providers.

Recommendation Twenty-one That the information disclosure provisions in joint service protocols be consistent with the principles and criteria recommended in this report and they be developed in consultation with appropriate privacy advisers (particularly Section 3.5 and Section 4.3).

Recommendation Twenty-two That joint service protocols between police and mental health services and between mental health services and other relevant health services (eg Divisions of General Practice and ambulance services) specify the range and type of confidential information that may be disclosed by mental health professionals in accordance with relevant legislation for the purposes of preventing and/or safely resolving a crisis situation and that this information include the following: •

relevant aspects of the person’s illness, disability, behaviour, personal history and treatment and management plans that would help police to understand the situation at hand;

•

warning signals indicating deterioration in a person’s mental condition and subsequent threat to personal safety and health and/or the safety and health of others;

•

‘triggers’ to avoid when approaching the person;

•

what might be done to calm the person and de-escalate the situation; and

•

who, whether clinician and/or another person, might be able to advise police as to how best to handle the situation.

Recommendation Twenty-three That joint service protocols between mental health services and police services and other relevant health services (eg Divisions of General Practice and ambulance services) or community care services also limit: •

what can be done with the information once the current situation has been resolved;

•

how it can be used in the future;

•

to whom it can be disclosed and for what purposes; and

•

how long the information can be retained.

Recommendation Twenty-four That mental health services and other relevant health and community care services collaborate with police services to ensure that police have access to expert advice to assist them to accurately interpret and appropriately use the confidential case information forwarded by mental health professionals and to assist them to safely prevent or resolve the crisis.

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54

APPENDIX A

Appendix A Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations Mental Health Branch, Commonwealth Department of Health and Aged Care Dr Harvey Whiteford (Chair) Director of Mental Health Ms Leonie Young Secretariat Ms Katy Robinson Secretariat

Human Rights and Equal Opportunity Commission Ms Rhonda Nelson Office of the Privacy Commissioner Human Rights and Equal Opportunity Commission Mr Christopher Sidoti Human Rights Commissioner Human Rights and Equal Opportunity Commission Mr David Mason Office of the Human Rights Commissioner Human Rights and Equal Opportunity Commission

Carer Representatives Ms Jean Mrozik Mr John McGrath MP

Consumer Representatives Ms Leonie Manns Mr Mike Fenton

Mental Health Services Dr Shane Gill Eastern Assessment and Crisis Intervention Service Glenside Campus Eastwood South Australia

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TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

Ms Valerie Gerrand Mental Health Branch Victorian Department of Human Services Dr Jane Fitch Psychiatric Emergency Team Perth Western Australia Dr Brett Emmerson Director, Division of Mental Health Services Royal Brisbane Hospital and District Health Service Queensland

AHMAC National Mental Health Working Group Representatives Ms Mary Blackwood State Manager Mental Health Services Tasmanian Department of Community and Health Services Mr Marko Klobas Senior Policy Officer, Mental Health Mental Health, Aged and Disability Services Territory Health Services Northern Territory

Attorney-General’s Department Ms Liz Atkins Acting Assistant Secretary Policy Coordination and Crime Prevention Branch Attorney-General’s Department (Commonwealth) Ms Kathy Leigh Assistant Secretary Information Law Branch Attorney-General’s Department (Commonwealth) Ms Natalie Hill (on behalf of Ms Kathy Leigh) Information Law Branch Attorney-General’s Department (Commonwealth)

Police Services Commander Sandi Peisley Commander District Operations Australian Federal Police Assistant Commissioner Ray Shuey Training Department Victoria Police Victoria Police Centre Commander Norm Hazzard

56

APPENDIX A

State Protection Group New South Wales Police Service Inspector Bob Sitlington (on behalf of Commissioner Ray Shuey) Operational and Safety Tactic Training Division Victoria Police Academy Superintendent Bob Watson Specialist Services Branch Queensland Police Service

Representatives Attending First Meeting Inspector Steve Hollands (on behalf of Superintendent Bob Watson) Office of the Commissioner Queensland Police Service

Representative Attending Second Meeting Mr Dermot Casey Mental Health Branch, Commonwealth Department of Health and Aged Care Acting Assistant Secretary Ms Phillippa Connell (On behalf of Commander Sandi Peisley) Australian Federal Police

Consultant to the Committee Dr Leanne Craze

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58

APPENDIX B

Appendix B Glossary of Terms Mental health crisis situation A ‘mental health crisis situation’ is understood in this report to refer to: a series of events and a combination of circumstances in which a person appears to be mentally disturbed, or impaired in judgment and/or exhibiting highly disordered behaviour. It is a situation that may involve serious and imminent risk to the health and/or safety of the person or of another person. It is a situation that requires communication and co-ordination between relevant services and assessment at the earliest possible point to: • ascertain the need for treatment; • prevent further deterioration in the mental condition and/or physical health of the person; and • thereby prevent or lessen harm to the safety and health of the person or any other person or to the safety and health of the public in general.

Mental disorder

A mental disorder may be defined as a significant impairment of an individual’s cognitive, affective and/or relational abilities which may require intervention and may be a recognised, medically diagnosable illness or disorder.

Mental Health Statement of Rights and Responsibilities 1991

Mental health

Mental health is the capacity of individuals to interact in ways that promote subjective well being, optimal development and the use of mental abilities (cognitive, affective and relational) and achievement of individual and collective goals consistent with justice.

Mental Health Statement of Rights and Responsibilities 1991

Mental health problem

A mental health problem is a disruption in the interactions between the individual, the group and the environment producing a diminished state of mental health.

Mental Health Statement of Rights and Responsibilities 1991

Mental health service

Specialised health services, which are specifically designed for the care and treatment of people with mental health disorders.

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TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

Health Services Professionals who may work with people with mental disorders and mental health problems

Include mental health and other nurses, psychiatrists, general practitioners and other relevant medical practitioners, psychologists, social workers and welfare workers, occupational therapists, Aboriginal health workers, pharmacists and ambulance officers. These health service professionals may work in the government, private and/or nongovernment sectors.

Crisis pre-planning

A process of case management by which a consumer and his/her clinician develop a mutual understanding of what steps are to be taken and what information is to be disclosed if the person’s condition deteriorates or a mental health crisis situation occurs and the consumer is unable or refuses to consent by reason of his/her mental condition. The concept of crisis pre-planning can equate to an ‘advanced directive’, specifically in relation to a crisis situation.

Prevent or lessen threat to the safety of the person concerned or safety of another person

States and Territories will need to develop definitions that are appropriate for their jurisdictions. Discussion might usefully consider the following formulation: preventing physical and psychological injury and damage to property (where such damage would result in injury).

Prevent or lessen threat to the health of the person concerned

States and Territories will need to develop definitions that are appropriate for their jurisdictions. Discussion might usefully consider the following formulation: • that there is a real risk that, without treatment, the person’s physical condition will deteriorate significantly and that this deterioration is a product of his/her the mental condition; or • that there is a real risk that, without treatment, the person’s mental condition will deteriorate significantly and to such an extent that their future rehabilitation is put in question.

60

APPENDIX C

Appendix C Information disclosure and privacy provisions in the Code of Conduct of Professional Associations

61

62

Royal Australian College of General Practitioners

Australian Medical Association

Code of Ethics August 1992

Royal Australian and New Zealand College of Psychiatrists

Principle 6

Code of Practice for the Management of Health Information in General Practice

Para 6.2.2

Code of Ethics 1994

Principle Three

Code & Section

Professional Association

Any disclosure should be limited to that which is either authorised or required in order to achieve the desired objective.

the patient concerned has consented ‌; or there is a legal duty for the general practitioner to make the disclosure ‌; or there is an overriding public interest in the disclosure of the information.

A general practitioner should not disclose personal health information to a third party unless:

Always, however, the overriding consideration must be the adoption of a line of conduct that will benefit the patient or protect his/her interests.

Para 6.2.2 Envisages that it will be necessary on certain occasions to acquiesce in some modifications from the principle of disclosure of confidential information.

3.8 If required to disclose information, psychiatrists shall as far as possible divulge only that information relevant to the case at hand, avoid highly sensitive and personal speculation ....

3.6 Psychiatrists may be released from their duty to maintain confidentiality if they become aware of, and are unable to influence, their patients intention to seriously harm an identified person or group of persons. In these circumstances, psychiatrists may have an overriding duty to the public interest by informing either the intended victim(s), the relevant authorities, or both about the threat.

3.2 Confidentiality cannot always be absolute. A careful balance must be maintained between preserving confidentiality ... and the need to breach it on rare occasions in order to promote the partient's optimal interests and care and/or the safety or other significant interests of third parties.

Principle Three: Psychiatrists shall hold information about the patient in confidence.

Provision

The code specifically discusses the situation where a person with a psychiatric condition poses a danger to members of the public and would support the disclosure of confidential information in a mental health crisis as long as to do so was assessed by the GP to be in the public interest.

The Code of Ethics would most likely permit the disclosure of confidential information in a mental health crisis situation

The Code of Ethics would support the disclosure of confidential information in a mental health crisis situation

Effect or Implications

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63

Nurses hold in confidence any information in a professional capacity, and use professional judgement in sharing such information.

Explanatory Statements 1 - The nurse respects a person's rights to determine who will be provided with their personal information. Exceptions may be necessary in circumstances where the life of the person or of other persons may be placed in danger if information is not disclosed.

Code of Ethics for Nurses Value Statement 4

Australian Nursing Council Inc.

I. there is legal compulsion II. a patient gives informed consent.

Beyond the necessary sharing of confidential information with professional colleagues, occupational therapists are to safeguard confidential information relating to patients or clients. The disclosure of confidential information is permissible where:

Code of Ethics, Association of Occupational Therapists

3.2.6 (g) in circumstances where disclosure is necessary, social workers should protect clients' privacy and reveal only the relevant information required.......

3.2.6 (f) Social workers will share confidences ... only with informed consent of clients, except when compelling ethical or legal reasons prevail, for instance: to prevent serious harm to the client; to protect the public from serious harm; or to fulfil legal or statutory requirements ....

Draft - new Code of Ethics

Principle 3

3.4 The social worker will respect the privacy of clients and hold information obtained in the course of professional service in confidence, except where the law demands otherwise or there are ethical or moral reasons not to do so.

Psychologists must inform their clients of the legal and other contractual limits of confidentiality.

Code of Ethics (current)

Section III

(a) Psychologists must respect the confidentiality of information obtained from persons in the course of their work as psychologists. They may reveal such information to others only with the consent of the person or the person's legal representative, except in those unusual circumstances in which not to do so would result in clear danger to the person or others.

III. Propriety

Provision

Occupational Therapy Australia

Australian Association of Social Workers

Code of Professional Conduct, July 1994

Australian Psychological Society General Principles

Code & Section

Professional Association

The Code of Ethics for Nurses would lend support to disclosure of information in a mental health crisis situation.

This code is currently being rewritten and updated. As it stands now, the term 'the necessary sharing of information' would most likely enable occupational therapists to disclose information for the purpose of preventing or lessening threat to safety and health.

Both the current and draft new code of ethics for social workers would lend support to disclosure of information in a mental health crisis situation.

The Code would support the disclosure of confidential information in a mental health crisis situation.

Effect or Implications

APPENDIX C

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64

APPENDIX D

Appendix D Information disclosure and privacy provisions in Australian Jurisdictions

65

Information Privacy Code of Conduct (October 1997)

91(2) Information .... may be disclosed -

s. 91 (2) (f-h) Mental Health and Related Services Act 1998

Northern Territory

66

Provisions are consistent with those of Mental Health & Related Services Act (the latter taking precedence) Makes it clear that a defence against a claim of 'breach of confidentiality' is that it was done in good faith for the purposes of assisting police to carry out their duty in relation to serious crime or threat.

why the information is collected; who will have access to the information; how the information will be used; any proposed disclosure to third parties.

3.6.5.1 Police access, serious crime and public safety - information from health records may be provided by the senior health care provider to the police where there is a serious or imminent threat to someone's life or health 3.6.5.4 Where a client has not authorised the police to have access, the treating health care provider is to ensure that only relevant information is released.

Applies to both public and private health sectors

Enables public mental health professionals to disclose relevant information to police in crisis situations (ie in situations where intervention is required to prevent imminent harm to the person or to someone else).

Effect or Implications

3.5 Consent of client is a cornerstone of information privacy. Clients must be well informed about how their personal health information will be used:

(h) when it is required to prevent or lessen a serious or imminent threat to the life or health of the person, another person or the general community.

(g) to the Commissioner of Police or a member of the Police Force nominated by the Commissioner .... where the person disclosing the information reasonably believes that the person to whom the information relates may harm self or represents a danger to the general community;

(f) to a member of the Police Force where the person to whom the information relates is in a situation that requires immediate intervention and the person is likely to cause imminent harm to self, to a particular person or any other person, or represents a substantial danger to the general community and the information is relevant to the safe resolution of the situation;

Provision

Act/Code & Section

Jurisdiction

TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

s.90

s.90 Mental Health 1996 - assented to but not yet proclaimed

Tasmania

Principle 11.1: personal information not to be disclosed ... unless:

Information Privacy Principles Guidelines for Government Agencies Tasmania

67

11.4 A person ... to whom personal information is disclosed ... shall not use or disclose the information for a purpose other than the purpose for which the information was given ...

(f) the record-keeper considers the disclosure is in the public interest.

(c) the record keepers believe on reasonable grounds that disclosure is necessary to prevent or lessen a serious or imminent threat to life or health of the individual concerned or another person;....

A person liability is not occurred in respect of an act done ... in good faith in the performance or exercise .... of any function ....

s.92 Mental Health Act 1996

(c) the disclosure is authorised or required by a court, the Board or the Tribunal.

(b) the disclosure is reasonably required for the care or treatment or the person to whom the information relates or for the administration of this Act; or

(a) the disclosure is authorised by the person to whom it relates; or

(2) The information may be disclosed if -

(1) A person who obtains information of a personal or confidential nature about a person in the exercise of powers or functions under this Act must not disclose the information except as authorised or required‌.

Provision

Act/Code & Section

Jurisdiction

Would enable the disclosure of information to police or another health care service in a mental health crisis, however, the Mental Health Act takes precedence over these Privacy Principles.

Clause 2(b) the disclosure is reasonably required for the care or treatment of the person to whom the information relatesmay enable the disclosure of information to police and other third parties in mental health crisis situations - not clearly or specifically addressed.

Effect or Implications

APPENDIX D

(b) in connection with the administration or execution of this Act,

(& s.101 Guardianship Act 1987)

NSW Health Information Privacy Code of Practice

s.289 A person must not disclose any information obtained in connection with the administration ... of this Act ... unless the disclosure is made:

s.289 (a-e) Mental Health Act 1990

New South Wales

para 6.5.2 Disclosure not authorised by client - Requests for information by the police should be dealt with by the treating health care provider or senior health care provider.

Generally, the information supplied should be limited to confirmation of identity and address. The only exception is where the police can confirm they are actively investigating the commission of an offence and that the information is essential to the execution of their duty ... information released should be limited to a general outline of the client's condition .... and confirmation of identity and address. Any other information may only be provided in response to a search warrant.

para 6.2.3 General 'duty to warn' to protect members of the public - where a health worker becomes aware, in the course of managing a client/patient, that a risk to public safety exists, he or she will be excused from breaching confidentiality where he or she discloses information about this risk in order to protect members of the public.

(e) with other lawful excuse.

Provision

Act/Code & Section

Jurisdiction The disclosure of information to police and other third parties in mental health crisis situations is not specifically addressed by either the Mental Health Act of the Information Privacy Code.

The disclosure provisions in the Mental Health Act are narrow and take precedence over the Code.

Effect or Implications

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68

s.85 (2) A person to whom this section applies shall not - ........

s.85 Mental Health (Treatment and care) Act 1994

Australian Capital Territory

Principle 10 Except where personal health information is being shared between members of a treating team only to the extent necessary to improve or maintain the consumer's health or manage a disability of the consumer, a record keeper .... shall not disclose information to a person or agency ... unless-

Part II s.5 Health Records (Privacy and Access) Act 1997

69

(e) the disclosure is necessary for the management, funding or quality of the health service received by the consumer.

i) a law of the Territory; ii) a law of the Commonwealth; iii) an order of court of competent jurisdiction; or

(d) the disclosure is required or authorised by;

(c) the record keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious or imminent risk to the life or physical, mental or emotional health of the consumer or of another person;

(b) the consumer has consented to the disclosure;

(a) the consumer is reasonably likely to have been aware .... that information of that kind is usually passed to that person or agency;

unless the record is made of the information divulged or communicated in relation to the performance of a function or exercise of a power, as a person to whom this section applies, under or in relation to this Act or another Act.

(provisions relate to the functioning of the Tribunal)

(b) directly or indirectly divulge or communicate to a person protected information concerning another person;

Provision

Act/Code & Section

Jurisdiction

In absence of specific and general provisions in the Mental Health Act, Principle 10 of the Health Records (Privacy and access) Act 1997 would provide a basis for mental health professionals to disclose information to police and other third parties in a mental health crisis situation.

The Mental Health Act does not contain a specific and general provision concerning the disclosure of information to police and other third parties in mental health crisis situations.

Effect or Implications

APPENDIX D

Makes it an offence for any person acting in the administration of the Act to divulge any confidential information relating to a client which might lead to the identification of an individual, except where required or authorised by law or by his/her employer.

Protection from liability for an honest act.

Contains draft provisions for information disclosure to police or another third party without the consent of the person involved and draft provisions for 'duty to warn';

s. 34 (1) Mental Health Act 1993

s.36 Mental Health Act 1993 Department of Human Services, SA Health Commission Draft Code of Fair Information Practice for the South Australian public health system

South Australia

Envisages the need for police to be given information in the public interest or in the client's interests

Provision

Act/Code & Section

Jurisdiction

This code would not take precedence over the provisions of the Mental Health Act Applies to the public health system and the records of public patients in private health care agencies.

It would be unlikely that a mental health professional who discloses information to police and other third parties on need to know basis in a mental health crisis situation would be liable of an offence

Disclosure of information in a mental health crisis situation not specifically or clearly addressed.

Disclosure of information to police in a mental health crisis situation, would probably be legal if the Mental Health Service had internal and formal circular or instruction permitting such a disclosure.

Effect or Implications

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70

s.213 Mental Health Act 1996

s. 206 (1) A person must not directly or indirectly divulge any personal information obtained by reason of any function that person has .....

s.206 Mental Health 1996

Western Australia

s.213 An action in tort does not lie against a person for an act done in good faith and without negligence in the performance ..... of a function under this Act.

(a) in the course of duty; (b) under this Act or another law; (c) for the purposes of the investigation of any suspected offence or the conduct of proceedings against any person for an offence; or

(2) Subsection (1) does not apply to the divulging of information -

Provision

Act/Code & Section

Jurisdiction

Covers both public hospitals and agencies and private health care agencies licensed under s26DA of the Hospitals and Health Services Act 1927.

Disclosure of information in a mental health crisis situation is not specifically and directly addressed.

The 'incourse of duty' clause would most likely cover disclosure of information in a mental health crisis situation particularly in view of the Objects of s.5 of the Act eg 5(b) to ensure proper protection of patients as well as the public.

Effect or Implications

APPENDIX D

71

Human Services Victoria, Information Privacy Principles June 1998 Principle 10.10

s.120 (2) A person to whom this section applies must not, except to the extent necessary-

s.120A Mental Health Act 1986

Victoria

72

10.10 Exception of this Principle allows personal information to be used or disclosed to prevent or lessen 'a serious and imminent threat' to the health, welfare or safety of the individual concerned, another individual or the broader public. For this exception to apply, the harm must be about the happen, and the threat to a person's health, welfare or safety must be likely to result in significant harm. Where the risk to the health, welfare or safety is remote and unlikely to be prevented or lessened by the release of certain details about an individual, and where the individual themselves could be adversely affected by the release of such details, then this exception will not apply and other alternatives for dealing with the situation ought to be considered.

(i) to the giving of information to a person to whom in the opinion of the Minister it is in the public interest that the information be given.

(e) to the giving of information required in connection with the further treatment of a patient;....

(ii) is communicated by a member of medical staff of a relevant psychiatric service to the next of kin or a near relative of the patient in accordance with the recognised customs of medical practice; ...

(i) is communicated in general terms; or

(c) to the giving of information concerning the condition of a person who is a patient in, or is receiving psychiatric services from, a relevant psychiatric service if the information-

(3) Sub-section (2) does not apply - ....

(c) to give information he or she is expressly authorised or permitted to give under this or any other Actgive information to any other person ....

(b) to exercise powers under this or any other Act in relation to relevant psychiatric service; or

(a) to carry out functions under this or any other Act; or

Provision

Act/Code & Section

Jurisdiction

Apply to all staff of the Department of Human Services and staff of funded organisations.

The Privacy Principles would lend support to the disclosure of information in a mental health crisis situation.

However, provisions similar to those contained in the NT Act regarding release of information in a defined critical incident would be simpler and more effective than seeking Ministerial exemptions, though the former would require legislative amendment. Inclusion in the Act would more clearly define what, when and how information can be communicated to the police.

The disclosure of information to police and other third parties in mental health crisis situations is not specifically addressed by the Mental Health Act. The disclosure provisions in the Mental Health Act are narrow and take precedence over the Information Privacy Principles.

However, the Act would enable information disclosure in a mental health crisis situation to be addressed via Ministerial discretion.

Effect or Implications

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Queensland Health is currently drafting Information Privacy Principles

73

(B) is prescribed under a regulation for this paragraph.

(A) is between Queensland and the Commonwealth, State or entity; and

(ii) is required to or may be given under an agreement that

(i) is determined by the Chief Executive to be in the public interest; and

(g) to the giving of information to the Commonwealth or a State, or an entity of the Commonwealth or a State, by the Chief Executive if the giving of the information-

(f) to the giving of information to an official that is relevant to the performance of the official's functions stated in the official's instrument of appointment; or

(e) to the giving of information required in connection with the further treatment of a patient in accordance with the recognised standards of the relevant medical or other health profession; or

(c) to the giving of information concerning the condition of a person who is a patient in, or is receiving health services from, a public sector health service if the information is communicated in general terms by a health professional in accordance with the recognised standards of the relevant medical or other health profession ...

(b) to the giving of information with the prior consent of the person to whom it relates ....

The disclosure of information to officers of another jurisdiction could also be clarified by regulation under 2(g). This would be cumbersome as the Chief Executive could only disclose the information.

Disclosure of information in a mental health crisis situation is not specifically and directly addressed but could be possibly allowed under 2(e) and 2(f).

(a) to the giving of information ... expressly authorised or permitted .... under this or any other Act or that is required by operation of law; or

(2) Subsection (1) does not apply -

The Act applies to the case information of a person who has received a public sector health service.

s.63 (1) An officer ... must not give to any other person ... any information ... if a person who is receiving or has received a public sector health service could be identified ‌

s 63. Health Services Act 1991

Queensland

Effect or Implications

Provision

Act/Code & Section

Jurisdiction

APPENDIX D

Personal information will not be disclosed unless: 2.1(d) the organisation reasonably believes that the use or disclosure is necessary to prevent or lessen a serious and imminent threat to an individual's life or health; or (e) the organisation has reason to suspect that an unlawful activity has been, is being or may be engaged in .....

74

This is a voluntary code of ethics to assist Australian businesses to meet privacy standards.

The Principles for the Fair Handling of Personal Information provide rules in relation to the collection, storage, security and disclosure of personal information by private sector bodies, as well as access to and correction of such information by the person concerned.

Applies to Commonwealth agencies and lends in principle support to the disclosure of information in a mental health crisis. The Information Privacy Principles provide rules in relation to the collection, storage, security and disclosure of personal information by Commonwealth agencies as well as access to and correction of such information by the person concerned.

10.1 A record-keeper who has possession ... of a record that contains personal information shall not use the information for any other purpose unless: (b) the record-keepers believe on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen serious and imminent threat to the life or health of the individual concerned or another person.

The text of exception 11.1(c) ‌. [unless] the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person

Information Privacy Principles Privacy Act 1988 (Commonwealth of Aust) Principle 10.1(b) & 11.1(c)

Other National instruments

National Principles for the Fair Handling of Personal Information Office of the Privacy Commissioner, Australia Principle 2.1 (d-e)

Effect or Implications

Provision

Act/Code & Section

Jurisdiction

TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

New Zealand Health Information Privacy Code 1994

New Zealand

Rule 11 Limits on the Disclosure of Health Information

Act/Code & Section

Jurisdiction

(ii) the life or health of the individual concerned or another individual.

(i) public health or public safety; or Lends in principle support to the disclosure of information in a mental health crisis.

Applies to health and disability services both public and private.

The Code does not derogate from any law that authorises or requires information to be made available.

Rule 11 (1) A health agency that holds information must not disclose the information unless the agency believes on reasonable grounds: 2(e)that the disclosure of the information is necessary to prevent or lessen a serious and imminent threat to:

Effect or Implications

Provision

APPENDIX D

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76

INDEX

Index A

G

accountable, xiv, 42, 45 acquired brain damage, 36, 49 alcohol/drugs, 13 Australian Association of Social Workers, 26, 63 Australian Bureau of Criminal Intelligence, 12 Australian Capital Territory, viii, 7, 10, 20, 21, 32, 36, 47, 48, 50, 51, 69 Australian Human Rights and Equal Opportunity Commission, 17 Australian Institute of Criminology, 7 Australian Medical Association, 26, 62 Australian Nursing Council Inc. 27, 63 Australian Psychological Society, 26, 63

Guidance Notes for Agencies in the Mental Health Sector, 25, 28 guidelines for incident management, 9 H Health Records (Privacy and Access) Act 1997, 20, 32, 69 High Risk Situations, 2, 9

I information databases, 42 information disclosure principles, 33 Information Privacy Principles, 19, 20, 33, 39, 43, 67, 72, 73, 74 information/referral network, vii, xii, 1, 3, 39, 42 in-patient services, 13, 48 intellectual disability, 49 internet, 12, 19, 42

B Backlar, P. 21, 22, 24 Bloch, Sidney 24 C

J

carers, 5, 7, 15, 17, 22, 25, 39, 44 client focus, xi, 29 clinical case-management, vii, 28 Code of Conduct, 20, 32, 33, 61, 66 Commonwealth, xi, xii, xiv, 1, 7, 19, 29, 37, 39, 42, 45, 55, 56, 57, 69, 73, 74 Conflict Resolution, 9 Cook, Dr Hugh 22, 23 consumer organisations, ix, 52 Crisis Intervention Ad-Hoc Advisory Group, 1, 7, 14 Crisis pre-planning, xi, 29, 60

joint service protocols, viii, ix, xiv, xv, 13, 15, 37, 47, 49, 50, 51, 52, 53 L Law Enforcement Negotiation Support System, 12 legislative authority, 40 Legislative issues, vii, 1, 3, 31 light-touch legislative scheme, 19 local levels, xiv, xv, 52, 53 M

D

media industry, xii, 27, 28, 30 medical condition, 36, 49 Memorandum of Understanding, 10, 48 mental health crisis services, 13, 14 mental health crisis situation, vii, viii, ix, xi, xii, xiii, xiv, 1, 3, 5, 6, 7, 9, 15, 17, 19, 21, 23, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 42, 43, 45, 48, 52, 55, 59, 60,62, 63, 67, 68, 69, 70, 71, 72, 73

dementing illness, 49 Deployment of Police, 9 E Emergency Psychiatric Services, 6, 13 ethics, 1, 21, 25, 26, 27, 62, 63, 74 ethical, vii, xi, 3, 17, 18, 21, 22, 26, 27, 28, 33, 44, 63 Expert Advisory Committee on Information Sharing in Mental Health Crisis Situations, vii, 1, 55

N National Mental Health Plan, xiv, 17, 24, 45, 52 National Mental Health Strategy, xi, 29 National Mental Illness Inquiry, 17 National Principles for the Fair Handling of Personal Information, 19, 74 National Rights Analysis Framework, xiii, 38 New South Wales, 7, 10, 13, 14, 20, 32, 47, 48, 50, 51, 56, 68

F Firearms Deaths, 7, 8 flagging system, xii, 40, 41, 42, 44 Flying Doctor, 14

77

TOWARDS A NATIONAL APPROACH TO INFORMATION SHARING IN MENTAL HEALTH CRISIS SITUATIONS

New Zealand Health Information Privacy Code 1994, 24, 75 Northern Territory, vii, 7, 20, 21, 32, 33, 36, 56, 66 NSW Health Information Privacy Code of Practice, 68

S self-regulatory, 19 serious and imminent threat, xii, 19, 20, 24, 25, 37, 59, 72, 74, 75 sound working relationships, ix, 15, 51, 52 South Australia, 7, 10, 20, 32, 70

O Occupational Therapy Australia, 27, 63

T

P

Tarasoff, 32, Tasmania, 7, 10 therapeutic relationships, vii, 18, 22, 28 twenty-four hour mental health services, 14

personality disorder, 49 police negotiators, 7 Police Services, ix, xiv, xv, 8, 9, 10, 12, 14, 15, 43, 45, 47, 51, 52, 56 Police Shootings, 7 privacy codes, vii, 17, 19, 20, 21, 28, 33, 36 private sector, ix, xii, xv, 15, 19, 20, 21, 24, 30 public interest, 26, 31, 32, 48, 62, 67, 70, 72, 73

U United Nations Principles on the Protection of People with Mental Illness, vii Use of Force, 9, 10, 11, 12

Q

V

Queensland, 7, 15, 32, 57, 73

Victoria, 7, 9, 10, 11, 12, 13, 14, 20, 21, 32, 47, 48, 50, 51, 56, 57, 72 Victorian Mental Health Review Board, 34, 35

R register, 10, 11, 12, 39, 40 risk to property, vii, 28 Royal Australian and New Zealand College of Psychiatrists, 25, 62 Royal Australian College of General Practitioners, 26, 62 rural and remote, 15, 43, 50

W warning signals, 6, 17 web-site, 42 Western Australia, 7, 10, 13, 14, 22, 32, 47, 71

78