Key messages

  • The Mental Health Act 2014 enables health information to be disclosed in specified circumstances, to ensure that people with mental illness receive effective treatment and care.
  • Health information may be disclosed if the person to whom the information relates consents to its disclosure.
  • Where a person is unable to consent or refuses consent to disclose health information, the Act permits information to be disclosed in specified circumstances.

The Mental Health Act 2014 enables health information to be disclosed in specified circumstances, to ensure that people with mental illness receive effective treatment and care.

Health information may be disclosed if the person to whom the information relates consents to its disclosure.

Where a person is unable to consent or refuses consent to disclose health information, the Act permits information to be disclosed in specified circumstances.

Disclosure of health information

The following people must not disclose health information about a consumer, except in the circumstances outlined in the remainder of this document:

  • the mental health service provider
  • any member of staff or former member of staff of the mental health service provider
  • any person who is or was a contractor of the mental health service provider
  • any volunteer or former volunteer at the mental health service provider
  • any member of the board or former member of the board of the mental health service provider.

Consent

Health information may be disclosed if the person to whom the information relates consents to its disclosure. Health information may also be disclosed if the person to whom the information relates is dead and the person’s senior available next of kin consents to its disclosure.

Permitted by legislation or selected Health Privacy Principles

Health information may be disclosed if the disclosure is permitted by an Act other than the Health Records Act 2001.

Health information may also be disclosed if disclosure is permitted by Health Privacy Principles 2.1, 2.2 (a), (f), (g), (h) or (k) or 2.5.

Health Privacy Principle 2.1 permits the disclosure of information for the primary purpose for which the information was collected.

Health Privacy Principle 2.2 (a) permits disclosure of information for a secondary purpose if the secondary purpose is directly related to the primary purpose and the consumer would reasonably expect the service to disclose the information for the secondary purpose. A ‘related’ purpose must be directly connected or associated with the primary purpose of collection. When the information was collected the person does not need to have been specifically told that it would be disclosed for the related purpose, but they should reasonably expect the disclosure to occur. If the disclosure is reasonably expected, there is no requirement to seek consent.

Health Privacy Principle 2.2 (f) permits the disclosure of information for the purposes of activities such as funding, management, planning, monitoring, improvement, quality assurance or evaluation of health services and training in limited circumstances.

When information is disclosed for these purposes, reasonable steps must be taken to de-identify the information, however, if the purpose cannot be served by using de-identified information and it is impracticable to seek consent, then identified information may be used.

Any identified information disclosed in these circumstances must not be published in a generally available publication.

Health Privacy Principle 2.2(h) permits the disclosure of information if it is necessary to lessen or prevent:

  • A serious and imminent threat to a person’s life, health, safety or welfare.
  • A serious threat to public health, safety or welfare.s

A ‘serious’ threat reflects significant danger and could include:

  • A potentially life threatening situation or one that may result in serious injury or illness
  • The threat of infecting a person with a disease that may result in disability or death
  • An emergency following an accident when a person’s health could be in danger without timely decision and action.

A threat is ‘imminent’ if it is about to occur or, if without quick action, the threat may escalate. This may include a threat posed that could result in harm immediately or within a matter of hours, or possibly days depending on the circumstances.

A threat to the public must be serious to necessitate disclosure of health information, but it does not have to be imminent. However, a shortage of time within which to take action could contribute to the seriousness of the threat.

Determining whether a threat to the public is ‘serious’ is a matter for judgment in the circumstances. It requires consideration of how likely it is that the threat will occur and the seriousness of the consequences if the threat eventuates. Some indicators that a threat could be serious are:

  • People may die or be injured or be put at serious risk
  • The people who are likely to be affected cannot be identified in advance
  • It will be very difficult to contain the repercussions if the threat is realised
  • The impact of the threat will disrupt whole communities.

HPP 2.2(h) permits the disclosure of information if it is ‘necessary’ to lessen or prevent a threat. A decision to disclose identifying information to prevent a threat must include consideration of whether disclosing the information is ‘necessary’ in the circumstances. This can only be assessed at the time, but consider the following:

  • Are there good reasons to believe that the threat is real?
  • How will disclosing the information prevent or lessen the threat?
  • What are the alternatives? Is the information available from another source? Can this be achieved by disclosing less - or different - information? Can you rely on other sources of authority, such as consent or another law?

Health Privacy Principle 2.2(k) permits the disclosure of information where this is necessary for the establishment, exercise or defence of a legal or equitable claim. For example, it may be necessary for a ‘relevant psychiatric service’ to disclose information to its legal advisors while responding to a complaint of discrimination.

Health Privacy Principle 2.5 permits the disclosure of information if a consumer is suspected to be or is dead, is suspected to be missing or is missing or is involved in an accident or other misadventure and is incapable of consenting to the disclosure.

Disclosure in these circumstances should only be to the extent reasonably necessary to identify the consumer or to ascertain the identity and location of an immediate family member or other relative of the person to:

  • Enable a member of the police force, a coroner or other prescribed organisation to contact the immediate family member or other relative for compassionate reasons
  • Assist in the identification of the person.

Mental health service providers

Mental health service providers may disclose information where it is reasonably necessary for them to perform functions or exercise powers under the Mental Health Act 2014 or any other Act.

Information may also be disclosed when it is required by another mental health service provider or health service provider within the meaning of section 3 of the Health Records Act 2001 to provide health services to the person.

Disclosure in general terms

The Act permits a mental health service provider to disclose a person’s health information in general terms to a friend, family member or carer of a person if the disclosure is not contrary to any views or preferences of the person that the health information not be disclosed to that friend, family member of carer.

While it is intended that only limited information may be disclosed in these circumstances, it would extend, for example, to telling a telephone caller that an inpatient is well enough to receive visitors or the disclosure of limited information, such as diagnosis, during family psycho-education sessions.

Second psychiatric opinions

Information may be disclosed to a psychiatrist giving a second psychiatric opinion in accordance with the Act. The disclosure may include providing access to a patient’s clinical records or discussing a patient’s treatment with the psychiatrist giving the second psychiatric opinion.

Information required to provide care

The Act seeks to ensure carers will receive the information they need to provide care or to determine the nature and scope of care to be provided to a patient and to make the necessary arrangements in preparation for their caring role, or to provide care to the patient. In making a decision to provide information in these circumstances, the person providing the information must have regard to the patient’s views and preferences about the disclosure, including any preferences expressed in an advance statement.

Information disclosed in these circumstances may include about the treatment and management of mental illness, how to respond to disturbing behaviours, how to access practical assistance and generally assisting carers to better support the person with mental illness.

Parents of persons aged under 16 years

Information may be disclosed to a parent of the person to whom to information relates, if the person is under the age of 16 years.

Health information may also be disclosed to the Secretary of the Department of Human Services if the person to whom the information relates is the subject of a custody to Secretary or guardianship to Secretary order.

Disclosure in accordance with the Act

Health information may be disclosed if the disclosure is reasonably required to enable the following persons to perform a duty or exercise a power in accordance with the Act or the Mental Health Regulation 2014:

Information may also be disclosed if it is required in connection with a proceeding before the Mental Health Tribunal, the Victorian Civil and Administrative Tribunal (VCAT) or the Forensic Leave Panel.

Required by a court

Health information may be disclosed if it is required by a court in connection with a proceeding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Disclosure to guardian or agent

Health information may be disclosed to a guardian or agent of the person to whom the health information relates if the disclosure is reasonably required in connection with the performance of a duty or exercise of a power by the guardian or agent.

Notifications and claims - insurance

Health information may also be disclosed if it is required in connection with a notification, claim or possible claim to a person or body providing insurance or indemnity for any possible liability of the mental health service provider arising out of the provision of mental health services.

Carers

The Act provides that carers must be informed of key events when they will directly affect the carer and the care relationship and consulted at key points in a person’s treatment if the decision that is being made will directly affect the carer and the care relationship. For more information, see carers and families.

Nominated persons

The Act provides that a nominated person must be informed of key events and consulted at key points in a person’s treatment. For more information, see nominated persons.