Dialogue: Patients' privacy a complex issue in mental health field

by DWAYNE CROMBIE*

The Lachlan Jones tragedy raises issues about the disclosure of information in the mental health arena that are complex both in relation to the inquiry review and to whom an individual's confidential health information could have been passed by health professionals.

Ultimately, it is about determining the balance between the public interest and the rights of individuals to privacy.

The mental health inquiry into Jones - who killed his flatmate, Malcolm Beggs, then apparently committed suicide after discharging himself from Waitemata Health's acute psychiatric unit - was carried out as part of a quality assurance review under the Medical Practitioners Act. A condition of such reviews is that hospital and health services can make public any information as long as it does not identify individual doctors either directly or indirectly.

In health, unexpected deaths are also subject to the coroner's process in which there is a clear attention to cause and circumstance. The separate clinical and legal processes have a different but complementary focus, which makes sense when you consider the taxpayer is paying for both.

It is important that the coroner's process is not pre-empted by the media because a fundamental tenet of our justice system is that people are entitled to a fair and objective hearing. It is also in the coroner's court that families can seek detailed answers to their questions.

On the issue of information disclosure, there are striking parallels between the recent Waitara shooting by the police and the Jones tragedy.

In relation to the review processes by the Police Complaints Authority, Margaret Wilson said: "I can imagine there are some instances in which, unless they have privacy, they wouldn't get the information they needed. You are balancing those legitimate considerations against the public right to know."

Similarly in medicine, quality assurance safeguards were driven not by a desire to protect health professionals but to get at all the facts.

Among the biggest issues facing the health sector worldwide are the avoidable consequences of inadequate healthcare systems. Indeed, most of the March 18 edition of the British Medical Journal is devoted to the topic.

Professor James Reason writes about the two approaches to the problem of human fallibility. The first is the person approach, which sees error as resulting from aberrant human actions, such as carelessness, negligence or inattention. The second is the systems approach, in which humans are regarded as fallible and errors occur even in the best organisations. It concentrates on the conditions under which individuals work, and tries to build defences to avert errors or mitigate their impact.

In other words, we cannot change the human condition but we can change the conditions under which humans work. Aviation and traffic safety engineering are two areas in which the focus on fail-safe systems and processes, rather than relying only on professional judgment, would be instructive for the healthcare sector.

Professor Lucian Leape and Donald Berwick argue that if healthcare can mobilise its resources and enshrine a safety culture as a priority, it will make tremendous strides. "But today's culture of blame and guilt often shackles us. Achieving the culture of learning, trust, curiosity, systems thinking and executive responsibility will be immensely difficult in the spotlight of a newly aroused public and media."

The non-disclosure provisions in quality assurance activities in medicine have arisen purely out of a pragmatic desire to get as full and accurate answers as possible. Their purpose is entirely directed at increasing our chance of learning so we can minimise future harm.

Ironically, I believe that as much information as possible should be publicly available and strongly sympathise with the Beggs family's desire to see the full quality assurance review because to do so would help their grieving.

However, this requires a far more open and non-judgmental environment in which to address the safety of our patients and clients, an environment in which health professionals trust their community enough to discuss their shortcomings and limitations and resolve and commit to continuously improving their care.

It is also an environment in which the media, politicians and the community use the information maturely and jointly accept responsibility for resolving the system problems identified, rather than satisfying their desire to blame and punish.

The Jones tragedy also raises the issue of whether confidential health information can be discussed with others close to the ill person.

The interplay between professional ethics, the rights of mental health consumers and the rights of others is very complex.

The Privacy Act and the privacy health information code allow health authorities to create policies that could disclose health status to anyone, provided there is a clearly implemented policy and that everyone with access to the service has the policy clearly explained to them.

Waitemata Health's practice is not to divulge confidential mental health information to others living and working with the ill person concerned unless they have a clear caregiver role. Every other mental health service in the country has similar policies.

Divulging information would result in people with mental illness being reluctant to use services for the fear of exposure and stigmatisation. In other areas of illness, few people would believe it was right to release personal information.

The alternative view that people who live or work in close proximity to an ill person have a right to know presumably assumes increased risk for those people. How else could we, as a society, justify singling mental health out for a different disclosure policy than other health conditions?

Carrying such thinking to its logical conclusion, society must also inform those close to people previously convicted of violent crimes. We have plenty of information that shows people with a previous conviction for violence present a significantly higher risk of future acts of violence than people with a mental illness.

Despite their known risk, we do not detain former prisoners on suspicion of what they might do, nor do we tell unsuspecting employers and flatmates.

* Dr Dwayne Crombie is the chief executive of Waitemata Health.

The reference (in the third paragraph of this article) to the circumstances of the deaths of Malcolm Beggs and Lachlan Jones was not written by Dr Crombie. It was added by the Herald for the benefit of readers.