Dialogue: Mental health care must not put public in danger

The Malcolm Beggs case suggests a need for law reform, but does not mean that treatment in the community should be abandoned, says WARREN BROOKBANKS*.

The Auckland coroner's report on the deaths of Malcolm Beggs and Lachlan Jones is a sad reminder that human systems for the management of mentally ill people are often far from perfect.

In this case, it is clear that "the system" failed to provide adequate protection for people who were evidently at risk, with devastating consequences.

However, it does not mean that because community mental health services failed to protect the safety of members of the community on this occasion, the system of community mental health is a failure and should be abandoned.

New Zealand adopted a new model of community mental healthcare with the passing of legislation in the early 1990s. This partly responded to an international trend recognising the rights of people with mental illness.

In particular, it heeded the need to respect and enhance patient autonomy and the principle that compulsory treatment should always be offered in the least restrictive manner and environment consistent with the delivery of safe and effective care and the safety of the community.

This model is now well established in most countries with a social system and values similar to New Zealand.

It also partly responded to the fiscal reality that maintaining large, long-stay mental institutions was expensive but did not always deliver optimal care.

There have been many downstream consequences of moving to this model of care. One is that where services have been insufficient to provide a safety net for those in need of care, some patients have fallen between the cracks in the system and either lapsed into serious mental illness or fallen foul of other social control agencies, in particular the police.

In this event, public safety can be compromised. This problem has arisen in every country that has adopted a community mental health model.

In Britain, legislation passed in 1995 gave the power to supervise patients in the community on discharge from hospital. This was introduced to combat perceived failures in community care.

However, it does not signal an abandonment of community mental health treatment in itself, merely a reconfiguration of the conditions of formal discharge.

New Zealand might seriously consider a similar approach for dealing with patients like Lachlan Jones who, on discharge, still need oversight and control.

A particular problem here, and central to the coroner's concerns in this case, has been a degree of confusion and misinformation about the provisions of the Privacy Act and the related health information privacy code.

The issue of what information may or may not be disclosed within a confidential professional relationship involving a psychiatric patient has been at large at least since 1996 when Judge Ken Mason reported the findings of the Matthew Innes inquiry.

It is clear that while individual health providers have their own operational procedures for the disclosure of general information about individual patients, which generally acknowledge the patient's right to privacy, the health information privacy code authorises the disclosure of information to prevent or lessen a serious and imminent threat to the life or health of an individual.

In the present case, the family of Malcolm Beggs have stated that he should have been told Jones was a paranoid schizophrenic and potentially dangerous. The coroner has endorsed this view.

The coroner is right. Balancing public safety against the duty to maintain patient confidentiality is always a difficult task. But at the end of the day it is a threshold question.

Mere fear that a patient may, at some unspecified time, be a danger to others will never be sufficient to justify a breach of confidentiality. But where there is serious professional concern that a particular type of harm could occur, based on a sound knowledge of a patient's behavioural proclivities and expressed fantasies, it may be more difficult for a provider to resist the professional judgment that some disclosure is justified.

In the Beggs case a greater degree of frankness on the part of Waitemata Health might at least have enabled Mr Beggs, as a de facto caregiver, to make an informed choice as to whether Jones was a person with the type of needs that he wanted to have responsibility for in a close domestic environment.

In these circumstances, common sense would suggest that the concept of privacy should also create a reciprocal obligation of disclosure where someone acquires significant responsibilities unwittingly.

Yet as the law stands people who, like Malcolm Beggs, acquire a "care" role for someone who suffers from a psychiatric illness may be completely unprotected and exposed if the person becomes mentally unwell and dangerous.

This is neither good law nor good policy and should be addressed as a matter of law reform.

* Warren Brookbanks is an associate professor of law at the University of Auckland.