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Report by the Privacy Commissioner to the Minister of Justice in relation to the Mental Health (Compulsory Assessment and Treatment) Amendment Bill 1998

1. Introduction

1.1 This Bill will amend the Mental Health (Compulsory Assessment and Treatment) Act 1992 ('the 1992 Act') to address practical difficulties associated with the operation of that Act.

1.2 In my work as Privacy Commissioner I have had a number of dealings involving the mental health sector. This is unsurprising given that health and disability information is generally very sensitive and information about individuals' mental health especially so. The information privacy principles, as modified by the Health Information Privacy Code 1994, govern the collection, holding, retention, use and disclosure of health information by health agencies. Accordingly, the Code, unless specifically overridden by another law such as the 1992 Act, (1.) will be relevant to the handling of health information by mental health service providers and professionals when treating individuals.

1.3 In this brief report I draw your attention to aspects of clauses 5 and 48. My comments in relation to clause 5 concern consultation with a person's family or whanau in relation to the exercise of powers under the Act by any person. Consultation inevitably involves a disclosure of information in the process of seeking input. Although the involvement of family is often appropriate and, I expect, usually beneficial, I nonetheless hold some concerns about the new clause. On the other hand, I welcome clause 48 which amends the Victims of Offences Act to allow for notification to victims of the escape or release of compulsorily detained persons from hospital.

2. Clause 5 - Consultation with a person's family or whanau

2.1 Clause 5 substitutes a new section 5. The existing section provides that a court or tribunal conducting proceedings under the Act, or a court, tribunal, or person exercising a power under the 1992 Act, must do so with proper respect for a patient's identity and beliefs. Specifically, with respect to families, it states that proceedings, and the exercise of powers under the 1992 Act are to be done:

'With proper recognition of the importance and significance to the patient of the patient's ties with his or her family, whanau, hapu, iwi and family group, and the contribution those ties make to the patient's well being.'

2.2 The content of the existing section 5 is carried over into the new provision but the explanatory note indicates that it has been widened to apply to 'all persons whose cultural identity and personal beliefs are directly affected'. The section also provides, and this is where I have some concerns, that the family or whanau is to be consulted unless this is not practicable, or if there are reasonable grounds for believing that the person affected does not wish the consultation to take place.

2.3 I will preface my remarks about the concerns that I hold by noting that consultation with family and whanau often occurs at present and this is generally to be welcomed and encouraged. The 1992 Act does not discourage such consultation and indeed the existing section 5 makes it plain that involvement of the family will often be expected. Naturally there could be some instances where consultation with the family would be desirable, supported by the patient concerned, and yet such consultation does not occur. The reasons for this could be many such as unavailability of family on particular occasions. Busy personnel may also believe that they can give effect to the obligations in section 5 without (further) consultation. However, if present practice sometimes falls short of what might be desirable, some difficult issues may nonetheless result from making consultation generally mandatory.

2.4 Issues which occur to me in respect of the proposed clause include:

  • The question of which exercises of powers are to be covered by the consultation requirement - is it just key statutory processes, such as admission and discharge, or is a busy mental health professional to undertake on-going consultation from day to day? Is the breadth of the obligation excessively wide?
  • What change is desired from the new clause? Is it in the key statutory decisions or the day to day ones? If there has been a failure to consult with families in particular circumstances it may be more effective to alter the specific provisions in the Act dealing with those processes. Otherwise, the clause may have the undesired effect of changing practice in other areas or perhaps leaving the problem area untouched.
  • Can one treat the family or whanau as a single unit? Family dynamics are such that an individual may prefer consultation to be had with a single family member, or particular members, and not the family or whanau generally. In another case an individual may wish to exclude just a single family member from involvement. Preferences may be fluid and change over time. Some families may be split into 'factions'. Consultation with the family member may actually exacerbate the condition or make treatment more difficult.
  • How does the provision apply (if at all) to friends and de facto and other relationships?
  • How are persons' wishes under clause 5(2)(ii) to be determined? Must they be asked directly? Is the question or answer to be recorded in writing?
  • Determining a person's wish to exclude their family from consultation will be a delicate matter requiring skill and sensitivity. It will be necessary to seek out those views in a private and non-threatening environment. There will need to be an opportunity for the individual to confirm or change his or her views from time to time. Indeed, an initial hostile attitude to family members which may arise from family involvement with compulsory treatment proceedings, or as a feature of the illness suffered, may mellow in some cases with treatment so as to allow for greater family involvement. There will also need to be skill in communicating the individual's wishes to families. It is on this score that mental health staff sometimes fail to properly inform family members. This is a matter that mental health agencies will have to give consideration to in their staff training.
  • Interests of the extended family do not necessarily coincide with the interests of the patient - particularly the social opprobrium still attaching to mental illness and to compulsory assessment.

2.5 Medical treatment had traditionally been carried out in circumstances of confidentiality between patient and doctor. The position is less clear cut with mental health treatment, given the judicial processes, involvement of third parties as substitute decision-makers, and the non-clinical aspects of the relationship, but it is nonetheless desirable to respect a patient's privacy and personal autonomy as far as is consistent with effective treatment and the objects of the Act. Consultation necessarily will involve a disclosure of some personal information to these families. The matter is further complicated since the Act affects not simply medical treatment but aspects of the patient's daily life. Involvement of families in the treatment of persons suffering from mental health problems is seen as a vital part of the 1992 Act. The challenge is to reconcile this with reasonable personal autonomy and appropriate treatment.

2.6 I suggest that consideration be given to:
(a) rethinking whether the mandatory consultation is necessary - does the existing section 5 deal with the matter satisfactorily?
(b) if a requirement of mandatory consultation is desirable, whether it might be possible to more precisely amend the Act in respect of particular statutory functions rather than include a general obligation in section 5;
(c) if retained in section 5, consideration ought to be given to the legal and practical problems involved with consultation with an entire family or whanau and the way in which individual wishes may be ascertained and decisions communicated to families; (d) whether or not the change is made, attention should be given to improving practice in the mental health sector in its communication with families, both in a consultative and information giving capacity.

3. Clause 48 - Amendment to Victims of Offences Act 1987

3.1 Clause 48 inserts a new section 11A into the Victims of Offences Act 1987. The new section provides for the notification to a victim of an offence of sexual violation or other serious assault or injury of the impending release, or escape, of an offender or an alleged offender detained as a result of an order made under section 45 and 46 of the Mental Health (Compulsory Assessment and Treatment) Act. The new section is a parallel provision to section 11 of the Victims of Offences Act which deals with notification to victims of the release or escape of offenders from penal custody.

3.2 I support the amendment which directly addresses a concern that some victims had expressed to me. Typically, a victim has been the subject of violence, or threatened violence, and the matter has been taken up with the Police. However, at some point in dealing with the matter the offender has quite properly been diverted into the mental health system rather than to prison. Some victims who have spoken with my office have welcomed such offenders being diverted for treatment, rather than simply being punished, but remain fearful nonetheless concerning the person's release. Where the release is planned, such victims wish to prepare themselves rather than, say, unexpectedly confronting the person on the street or on their doorstep. Unplanned release, such as by way of escape, is an added fear which may differ little, from the victim's perspective, whether the escape is from a prison or a mental health facility.

3.3 I had considered addressing the matter by way of amendment to the Health Information Privacy Code 1994. In fact, the proposed amendment in this bill is far more satisfactory than anything I could have effected through a code of practice under the Privacy Act. I could not, for example, require a register to be maintained and oblige agencies to notify third parties of information about patients. At most, I could provide additional discretion to release details in circumstances where such disclosure might otherwise constitute a breach of information privacy principle 11. In a 1998 amendment to the code I did just that - although the amendment was not specifically directed towards victims of offences. (2.)

3.4 The new section 11A will satisfactorily address the problem that some victims encounter. It does not simply confer a discretion upon health agencies but provides notification entitlements to victims and obligations on the Department of Corrections. I welcome the amendment.

B H Slane
Privacy Commissioner
4 February 1999

1. Privacy Act 1993, section 7, essentially provides that where an action is authorised by another statute, that action will not constitute a breach of an information privacy principle.

2.Health Information Privacy Code 1994, Amendment No 3, inserted a new rule 11(1)(g) which came into force on 30 September 1998. This specifically authorised a health agency to disclose health information where it believed, on reasonable grounds, that the information to be disclosed concerns only the fact that an individual is to be, or has been, released from compulsory status under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the disclosure is to the individual's principal caregiver.