When risk of harm warrants the release of health information without consent

On occasions when there is a risk of harm, an unconsented disclosure of health information may be made to reduce or prevent this risk. Clinicians, however, are often unsure of where the threshold lies in this decision. 

The Office of the Privacy Commissioner has recently made a release¹ giving some guidance on considering the relevant medico-legal framework, specifically rule 11 (2) (d) of the Health Information Privacy Code (HIPC). 

Under HIPC Rule 11 (2) (d) one may make a disclosure of information if it is necessary to prevent or lessen a serious threat to public health or public safety, or the life or health of any individual. But how high is the bar to make such a disclosure and what is a serious threat?

‘Serious threat’ is defined in s7 of the new Privacy Act and means a threat that one reasonably believes to be serious having regard to the following factors:

• The likelihood of the threat being realised – what are the chances this will happen?

• The severity of the consequences if the threat is realised – how bad would it be?

• The time at which the threat may be realised – how imminent is it? 

The Privacy Commissioner further explains that you must only disclose health information under the ‘serious threat’ exception if you are sharing the information with someone who can help lessen or prevent the threat and one should share only as much information as is needed to do so. 

Although this guidance is helpful in clarifying the factors to be considered, whether a certain instance meets the threshold for serious threat remains one of clinical judgment. A recent case² published by the Office of the Health and Disability Commissioner provides some guidance on threshold.

Case study 

Content note: this article discusses suicide and self harm.

Mr A was a 23-year-old man who had recently ended a two-year relationship. In a distressed state, he decided to end his life but didn’t follow through with this. He told his employer who organised a review by his GP. He saw the GP the next day and although he denied any ongoing suicidality, the GP referred him to Mental Health Services (MHS) writing: ‘he is very anxious, there is a bit of paranoic looking over his shoulder... I suspect this is a fragile situation...’ He was prescribed citalopram and diazepam. The GP arranged to see him again two days later in follow-up, at which time he presented calmer and more relaxed.

After some efforts to see the patient again in person and over the telephone, a nurse from the local community mental health clinic (CMHC) eventually saw him five days later. He explained that his mood had been low for three months. He had trouble sleeping. He reported difficulty dealing with distress. As well as the aborted suicide plan, he had made some superficial cuts to his wrists “as a way of coping with distress”. He was not seen by a psychiatrist but was referred for counselling. 

Two days later he made further superficial cuts to his arm and his employer took him to the local hospital. He was assessed and stayed overnight in the Emergency Department. He informed the assessing doctor that he was adamant that his family should not be notified. He was seen the next day by another CMHC crisis nurse. He told the nurse that he was feeling embarrassed by his situation and “definitely wants to live”.

It was noted that the original CMHC nurse planned to contact him the next day, and he was discharged from hospital. Later that day, he attended a locum GP and his dressings were changed. He said that he had no further intention or desire to self-harm, would maintain contact with the mental health nurse and had an appointment to see a counsellor. The antidepressant dose was increased and although Mr A wanted to return to work, light duties were recommended until his arm was healed.

The following day Mr A paid an impromptu visit to the CMHC office and was seen by the original nurse. He told the nurse that he was not suicidal and never had been, he simply "could not cope with the 'mind games’ his partner was playing with him". The nurse noted that his memory was poor and he appeared distracted by noises around him. She thought he was "slightly paranoid" but he denied it, explaining that he had an underlying anger towards his ex-partner. However, Mr A denied that he would physically harm anyone. He said that he would commence counselling on Saturday, and the nurse planned to call him later in the day. 

Mr A ended his life that evening. 

The family made a complaint to the Office of Health and Disability Commissioner who undertook an investigation. The HDC investigation concluded that the MHS did not provide Mr A with appropriate standard of care. His risk was assessed as low but without a formal risk assessment by CMHC staff and if an accurate risk assessment had been made, it is likely that disclosure would have been necessary. The Commissioner stated “…where the suicide follows shortly after contact with MHS, it is natural to ask whether more could have been done to prevent the death.” Specifically, there was criticism that the staff failed to involve his family.

The Commissioner’s view was: “Where there have been several suicide attempts in a short period, and there is no evidence of longstanding family estrangement, there should be a low threshold for notifying family of the risk of self-harm”. Despite Mr A being adamant that he did not want his family involved, given that he had no other social support apart from his employer, the view was that the DHB should have contacted his parents and advised them of his current mental health problems. “Sometimes an individual's safety should override his or her privacy, and family or caregivers should be involved to help provide a safe environment for recovery.” 

Learning points 

• One should consider disclosing health information without consent in situations involving serious threats to the life or health of a person or public health or public safety in order to reduce that threat. 

• When considering whether there is a serious threat, you need to use your clinical judgment to assess the likelihood of the threat occurring, the seriousness of the threat, and the harm that could eventuate, and the imminence of the threat. 

• You should only share as much information as is needed to prevent or lessen the threat, and it should only be shared with someone who can help lessen or prevent that threat. 

• Every case should be decided on its own merits, but if you have concerns about releasing a patient’s health information without their consent, due to risk of harm, then we would advise Medical Protection members to contact our advice line and discuss their concerns with one of our advisers.

References 

1 https://www.privacy.org.nz/privacy-principles/codes-of-practice/hipc2020/the-serious-threat-to-life-or-health-exception-in-the-hipc/ 

2 https://www.hdc.org.nz/decisions/search-decisions/2009/08hdc08140/