Legality of Disclosure by Victorian Psychiatrists of Patient Information to Carers
Clark, Karin, North, Andrew, Psychiatry, Psychology and Law
This article examines the current legal obligations which apply to psychiatrists in Victoria in relation to disclosing information about one of their patients to a caret of that patient. 'Carers' are broadly defined in this article to be people who are not health professionals, but who assist patients, usually in an unpaid capacity. Carers, as defined in this article, are often, though not always, close family members or friends of patients. While there is a duty on psychiatrists (and, more generally, all medical practitioners) to keep information about their patients confidential, there are some situations where disclosure to carers is permitted. In specific cases, psychiatrists may even have a duty to disclose certain information, particularly if the patient's life is in danger.
The sources of law that regulate the disclosure by psychiatrists to third parties are many and varied, and often more than one set of legal obligations apply. This article analyses which laws prevail in which circumstances. The initial sections of this article examine the relevant law. While it is clear from the analysis that the laws interact in a complex way, the end result is that a relatively simple set of rules for disclosure emerges. These rules are set out, along with our observations about how these rules sit with ethical guidelines such as those of the Royal Australian and New Zealand College of Psychiatrists.
The final section of this article discusses some specific practical issues relating to disclosure, such as issues of the patient's capacity to consent to disclosure, how consent may be obtained if the patient has capacity and examples of the types of information which can or should be disclosed in particular circumstances. While this article focuses on legal obligations, we are informed that experienced psychiatrists who can apply clinical skill, knowledge and judgment, while respecting the legally-derived 'rules', can overcome many of the practical problems that may arise where a patient's carer requires information to assist in the patient's care. As the interaction between the various laws and obligations is complex, the focus at this initial stage has been to limit the research to the legal and professional obligations which apply to psychiatrists in Victoria.
LAWS WHICH RESTRICT DISCLOSURE
Laws which restrict disclosure of information by psychiatrists to caters apply differently to psychiatrists in different situations. The laws in this area which apply to psychiatrists operating within certain institutions are usually different to those which apply to psychiatrists in private practice.
Psychiatrists working within many institutions in Victoria are covered by the Mental Health Act 1986 (Vic) (MHA). (1) The Health Services Act 1988 (Vic) (HSA) also regulates certain health professionals in the state health and general (including private) hospital areas, although for psychiatrists covered by the confidentiality provisions in the MHA, this Act prevails over the similar provisions in the HSA. Such psychiatrists may also be covered, in some circumstances, by the federal Privacy Act 1988 and the Victorian Health Records Act 2001 (HRA), referred to here as the 'privacy and health records schemes'. However, for psychiatrists covered by the MHA, the disclosure requirements set out in the privacy and health records schemes are not particularly relevant, as the MHA generally prevails.
Those psychiatrists whose work falls outside the scope of the MHA, however, are covered by the disclosure requirements in the privacy and health records schemes. The effect of both the MHA scheme and the privacy and health records schemes is that disclosure of patient information is generally prohibited, subject to certain exceptions. From a practical point of view, it is the exceptions which vary depending on whether a particular psychiatrist falls under the MHA or the privacy and health records schemes. …