The following short video extract from Associate Professor Amgad Tanaghow, Chief Psychiatrist, Mental Health Branch, Department of Human Services, provides the psychiatrist with some practical methods to tackle privacy and confidentiality.

A young person told the staff repeatedly that ‘I don’t want to talk to anyone of my family’. But every second day he would take an overdose and be brought to casualty and say it was impulse and send him back home and who was at home, his mother. He calls his mother, he lives on his own, to come and see what has happened to him. And that happened for about two weeks. When I was reviewing the problem I said, let me talk to him and I said ‘I have to talk to your mother’ and he said ‘you can’t talk to my mother’. I said, ‘why not?’ He said ‘I ban you from talking to my mother’ but I said ‘you go to her every time after an overdose and ask her to come and help you so why are you doing that and I will not be able to provide you with adequate help. And there is an illness that is obviously not managed properly because you repeatedly do that every day for the past two weeks. So I will have to talk to your mother, admit you to hospital’, and what I did was talk to his mother in front of him. I talk about the issues and the problems so the confidential material he doesn’t want to disclose is kept confidential but it is about the whole issue, why is he doing that and how can this be managed. The experience normally is that the person himself following the treatment thanks you for what you did because you managed to offer a much better help and resolution in the relationship and things move on in their life.

The thrust of what I am going to say is that there is no legal impediment whatsoever to the kind of information that Katherine and Trish were saying they wanted access to being provided by a clinician or being provided by the system, there is just absolutely none. What really is in place is a perception of what the law is or a fear of what the law is and just a lack of confidence really in a lot of situations to actually come out and exercise your own professional judgement. I will give you the three step guide to what this whole issue about privacy and confidentiality is and won’t talk about any sections or any law like that. If you follow these three things you will never ever have a problem with the disclosure of any confidential information.

The first one is respect confidential information. Everyone knows what’s confidential, you just know it intrinsically, treat it with respect. The second one to a clinician or professional, treat the patient. Use the information to treat the patient. The third one is avoid harm, which is the most important. That can be avoid harm to the patient, avoid harm to the carers, avoid harm to the community. Now there is always this tension between confidential information that is going to be provided by a person about their illness and that tension is going to be with the need to disclose that. It is really in practice not that difficult but occasionally it is unbelievably difficult. And I get presented at work with situations sometimes that I say to the doctor you will breach the law whatever decision you make but you have just got to do the right thing. What professionals need to be told and what is actually the law is that a reasoned use of confidential information will always be supported, provided it is reasoned.

I will give you an example then of what is unacceptable breach of confidential information and what is a reasoned use of confidential information. An unacceptable breach of confidential information is a case I had recently where a man went to see a psychologist as part of marriage therapy sessions. He had three marriage therapy sessions with the psychologist and then unfortunately the marriage broke down and ended up in a very bitter access dispute. Now he was absolutely furious when his wife at the access hearing produced a report from the psychologist that he had met with and that, as he described, had ‘spilled his guts to’ over the three sessions and that psychologist had provided a report solely to his wife that she was now using against him in the access dispute. Now that is just a violation that is not treating confidential information with respect. That is a misuse.

Go on to the reasoned side. It is a doctor who is told by someone he is treating that the person has some extremely florid and dangerous thoughts about his mother. Now I won’t venture as to if that is a common or uncommon experience but I have heard it more than once. And the issue is, is that disclosed to the mother and is that disclosed to the family? I said ‘Is it going to be useful in the treatment and is it going to avoid harm?’ My view, yes it is going to be useful in the treatment because the family actually knows what the problem is and the delusional patterns and that sort of thing that they can actually use to be more supportive but more importantly is it going to avoid harm and it probably is. And so the family was informed. Now that is a reasoned disclosure of information and I will now quote a section, section 120A of the Mental Health Act ‘permits the disclosure of information without the consent of a patient if it is reasonably necessary in the treatment of that patient’. Now the courts are not so arrogant as to actually look behind what a psychiatrist or mental health professional is reasonably coming up (against) in a very difficult pressure cooker situation and so it is perfectly legal. There is no law that certainly prevents the provision of that information.

So what is the key to it? The first one is that the whole thrust of all of these acts and the whole thrust of the consumer driven law now is for there to just be disclosure up front. When you are engaging a service just understanding what information is going to be used by them for what purpose. It does not have to be a 10-page document covering every conceivable angle, its just got to be if you give your information, we can share it with other services, we can share it with other clinicians, we can share it with your family but at all times we will treat your confidential information with respect and only use it when reasonably necessary to do so. Now someone understands that when engaging a service, there’s not going to be that sense of violation about any perceived misuse of confidential information. And always you just have to keep coming back to it, where there is a professional who sits down and thinks, what is the best thing to do in this situation for this patient, what is the best thing to do in this situation for the family, and the law is not about stopping that from happening.