Australia: Risks to the community vs. confidential medical care: A challenge not yet solved

Last Updated: 28 October 2017
Article by Bill Madden

The assistance of Justine Anderson, Carroll & O'Dea Lawyers, in the preparation of this article is gratefully acknowledged.

Although decided more than 30 years ago, many lawyers will remember the Tarasoff 2 case, which saw the Supreme Court of California called upon to consider the limits of a patient's expectation of confidentiality when seeking advice from a health professional. As recent developments in Australia show, the balancing exercise between confidentiality and the patient's potential risk to the community has become no easier and its significance may now be heightened by the scope for the risk to the community to be a risk of terrorist activity affecting many, rather than a risk to an individual.

In Tarasoff, the patient Mr Poddar was a graduate student who had formed a relationship with Ms Tarasoff. Her views regarding the relationship were not the same as those of Mr Poddar. He apparently began to stalk her and he became increasingly depressed. He came under the care of a psychologist to whom he confided his plan to kill Ms Tarasoff. In due course he was detained for mental health reasons, before being released. The psychologist did not warn Ms Tarasoff of the risk to her and she was ultimately killed by Mr Poddar.

The litigation was brought by the parents of the late Ms Tarasoff, alleging negligence on the part of the psychologist and others who had treated Mr Poddar. It was ultimately successful, with the majority of the Court holding that that the public policy favouring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

The Tarasoff decision is well known through much of the legal world. It has a page on Wikipedia.3 Some 30 years later, the challenge posed by Tarasoff has not disappeared.

In April 2017, a Coroner in the State of Victoria, Australia, published findings in an inquest into the death of Ms Adriana Donato in 2012.4 Ms Donato had formed a relationship with a former school friend, James, which she ultimately ended. James did not cope well and came under the care of a psychologist. In a sad parallel to the Tarasoff matter, he ultimately stabbed and killed Ms Donato.

The coroner's inquest focused James' disclosures to his psychologist, and examined the existing obligations of confidentiality in the psychologist/patient relationship. Probably having some regard to Tarasoff, the legislative threshold for breaching patient confidentiality in the State of Victoria required a 'serious and imminent threat'.5 The psychologist gave evidence that she had not reached the view that James constituted a serious or imminent threat. However, the Coroner found that it would have been appropriate for the psychologist to question James on his threats, such questioning should have made reference to Ms Donato and should have intended to verify whether he had developed a plan as to how harm would be inflicted. The response to these questions could have clarified whether she notify her employer and the police of the threats.

The Coroner recommended that the State of Victoria amend its legislation to remove the requirement that a 'serious risk of harm' be also one which is 'imminent'. It also recommended that existing Code of Ethics and Guidelines of the Psychology Board of Australia should provide greater clarity of reporting obligations.

After Ms Donato's death in 2012 but before the publication of the Coroner's findings in 2017, a far more prominent event occurred, in Sydney Australia. On 15 December 2014 Mr Monis took a number of people hostage in a café in central Sydney, purporting to do so on behalf of the ISIS organisation. He ultimately killed Mr Johnson, who worked at the café. Ms Dawson, a lawyer who had been in the café as a customer, was accidentally killed as police entered the building in response to the shooting of Mr Johnson.

Mr Monis at an earlier stage he also had been under the care of health professionals for mental health issues. The difference between his history and the two examples above was that Monis' mental health issues were more diverse and not focused on any of the individual hostages.

Again a Coronial inquest was held, addressing a wide range of issues. The Coroner touched on the Australian Psychological Society Code of Ethics, making recommendations for consideration of expanded circumstances for disclosure of risks of harm to others. The Coroner also addressed changes to privacy legislation, with recommendations for consideration of disclosure of health records to security agencies.6

The three examples above all related to risks of deliberate harm through physical actions on the part of a person who had been under care for mental health issues. At least with the benefit of hindsight, the arguments favouring review of laws and codes of ethics seems clear.

This brief article can only point to the challenge of balancing risks to the community against the benefits of confidential medical care. Doctors and other health professionals, at least in Australia, will no doubt wish to refine their codes of conduct. Governments may well revisit relevant laws, to tip the balance further in favour of the community protections.

Perhaps the same contemplation of similar issues may be warranted by the legal profession, given that lawyers sometimes learn from their clients of risks to the community of a serious and sometimes imminent nature.

Are these challenges limited to the health and legal professions? The responsibilities of other organisations such as internet service providers have already been the subject of debate. Despite the challenges of a general 'duty to rescue' concept, perhaps one day soon the courts will be called upon to consider the responsibility of a family member or an unrelated person, with knowledge that may have prevented the death of or injury to another.

Footnotes

1The assistance of Justine Anderson, Carroll & O'Dea Lawyers, in the preparation of this article is gratefully acknowledged.

2 Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14

3 https://en.wikipedia.org/wiki/Tarasoff_v._Regents_of_the_University_of_California

4 http://www.coronerscourt.vic.gov.au/resources/6a8714f7-7732-4ec5-9fa6-5208783b810d/adrianadonato_346512_redacted.pdf

5 Health Records Act 2001 (Vic)

6 http://www.lindtinquest.justice.nsw.gov.au/Documents/findings-and-recommendations.pdf

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Bill Madden
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions