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Risks to the Community vs. Confidential Medical Care: A Challenge Not Yet Solved[1]

Risks to the Community vs. Confidential Medical Care: A Challenge Not Yet Solved[1]

Published on October 26, 2017 by Bill MaddenBill Madden

As first published by Primerus Paradigm: International Society of Primerus Law Firms in Fall 2017.

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.

[1] The 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

[5] Health Records Act 2001 (Vic)

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