CHILD ABUSE AND NEGLECT Reporting and disclosure Mental Health Law Conference 1 November 2012

1. CHILD ABUSE AND NEGLECTReporting and disclosure Mental Health Law Conference1 November 2012 Peter Le Cren Special Counsel Claro

2. Case Studies: Case Study 1: A patient with long history of depressive episodes; has been admitted under the MHA, though not under the Act at present. Father of 2 preschool children; shared day to day care with ex partner. He discloses to his psychiatrist thoughts about killing himself and his children. Does the psychiatrist disclose to Child, Youth and Family Services?

3. Case Studies: Case Study 2: Patient with chronic schizophrenia. Under s.29 MHA due to history of poor medication compliance leading to disorganisation and self neglect. Key worker sees children in the patient’s home and becomes aware that she is working for a child care organisation. The patient refuses consent for the key worker to speak with the organisation. Does the key worker disclose to the child care organisation? To CYFS?

4. Case Studies: Case Study 3: Patient with a long history of mental illness, presently admitted to an inpatient unit under s.29(3) MHA due to acute relapse. The patient is the mother of a primary school age child. The school are concerned about the child’s wellbeing and refer to CYFS. CYFS request a copy of the mother’s medical records. Should the records be provided to CYFS?

5. Background: 4-10% of NZ children experience physical abuse 24% of girls and 11% of boys experience sexual abuse Child physical abuse increases: - mental health problems by 2-4 times - suicide attempts by 4 times - alcohol abuse by 2 times - impaired relationships by 4 times. The attributes that create vulnerability to abuse and neglect include, amongst many others, maternal or paternal mental health disorders - particularly bipolar affective disorder, persistent depression, alcohol and substance abuse, and personality disorder. Goodwin, Fergusson and Hallwood (2004), Psychological Medicine Fergusson, Hallwood and Linsky (1996), Journal of the American Academy of Child and Adolescent Psychiatry

6. Provider Obligation Framework Obligations to patient, for example: - Duty to treat with reasonable care and skill - Obligations of confidentiality Obligations to third parties, for example: - guardian of child can be a “consumer” for consent purposes or “representative” for privacy purposes - common law duty of care to third parties in limited circumstances: • member of an “identifiable and sufficiently deliniated class” of potential victims known, or ought to be known, to be the subject of a “distinct and special risk” of harm Couch v AG SC 2008 • no public policy considerations militating against the establishment of a duty • nature of the duty imposed is likely to be consistent with duty to the patient Statutory duties, powers, offences; for example: - s66 Children, Young Persons and Their Families Act - s195A Crimes Act

7. Proactive Management of Risk Primary obligation where risk to third parties: Good Clinical Management of your patient • means – appropriate diagnosis, therapy, medication, risk assessment, relapse planning, monitoring, referral. • means - appropriate management of information.

8. Broad Scope to Collect Information Information must be collected “for a lawful purpose connected with a function or activity of the agency” (Rule 1 HIPC) Information must be collected from the patient themselves, unless doing to would prejudice the patient’s interests or the purpose for collection, or doing so is not practicable. (Rule 2 HIPC) Where collecting from the individual, they must be informed of the purpose for collection and intended recipients (Rule 3 HIPC) The means of collection must not be unfair or unreasonably intrusive (Rule 4 HIPC)

9. Accuracy of Information Rule 8 HIPC Before using information a provider must take reasonable steps to ensure that the information is “accurate, up to date, complete, relevant and not misleading.” • Seek corroborating information • Obtain patient response to concerns

10. Proactive Management of Risk • Good clinical management may mean involving third parties – family, GP, Caregiver • Disclosure with consent of patient • Disclosure with consent of a ‘representative’ • S.7A MHA • Rule 11(1)(c) HIPC disclosure in accordance with ‘purpose for collection’ • Rule 11(1)(e) Disclosure of general information about presence and progress in hospital, provided not contrary to patient’s wishes • Rule 11(2)(b) HIPC disclosure to caregiver, near relative or a person nominated by the patient, in accordance with recognised professional practice, provided patient has not expressly objected.

11. Whanau Consultation S.7A MH(CAT) Act 1992 A [practitioner/responsible clinician] must consult the family or whanau of the proposed patient or patient. [except where] the practitioner has reasonable grounds for deciding that consultation— • Is not reasonably practicable; or • Is not in the best interests of the proposed patient or patient. … In deciding whether or not consultation with the family or whanau is in the best interests of a proposed patient or patient the practitioner must consult the proposed patient or patient. A practitioner must apply guidelines issued by the Director General of Health.

12. Whanau Consultation Mental Health: Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992  Ministry of Health 2000 • Imposes obligation on assessing practitioner (s.9) / responsible clinician • Consider the patient's prior competently expressed wishes, e.g. crisis plan; advance directive; EPOA • Ongoing two way communication • Consultation means: notification of proposed decision > open mind > adequate time > receive feedback > consider and decide > inform • "Best interests" principle means conflict of interests should be resolved in favour of the patient • Take account of competence/mental state, prior history of involvement, reasons why patient wants to exclude whanau, what information whanau can contribute. Note: • S.7A does not alter the ability to collect information from whanau • S.7A does not alter ability to disclose to whanau where other authorityexists

13. Other Grounds for Disclosure • Disclosure authorised by a “representative”, • “Representative” for health information purposes means: • Under 16 = parent or guardian • Deceased = executor or administrator of estate • Incompetent adult = “a person appearing to be lawfully acting on [the patient’s] behalf or in [their] interests”

14. Proactive Management of Risk Care and Protection - disclosure beyond Good Clinical Management: • S.15 CYPF Act – anyone may refer a child to CYFS who they believe is “likely to be harmed…ill-treated, abused, neglected or deprived…” • S.16 CYPF Act - legal protection where referral made in good faith • MoH / DHB policy makes reporting mandatory • policy emphasis on process rather than referral decision • Consultation with colleagues / care and protection team

15. Proactive Management of Risk Managing Acute Risk • Rule 11(2)(d) HIPC – may disclose if: (a) not practicable or not desirable to obtain consent, and (b) disclosure is necessary to lessen or avert a serious and imminent threat to safety, life or health Proposed amendment to Rule 11(2)(d) - “serious and imminent threat” changing to “serious threat” - “serious threat” defined to incorporate likelihood, severity and “the time at which the threat may occur”

16. Proactive Management of Risk Managing Acute Risk • Rule 11(2)(i)(i) HIPC – may disclose if: (a) not practicable or not desirable to obtain consent, and (b) disclosure is necessary to avoid prejudice to the maintenance of the law (including prevention, detection and prosecution of offences) - Minimum disclosure necessary for the purpose - Disclosure to an agency able to achieve the purpose • Duty to warn? ... no established duty to warn a third party, inconsistent with duty to patient

17. Responding to a CYFS Request (1) • S.66 CYPF Act “A government agency shall, when required, supply to [CYFS]… such information as it has in its possession relating to any child or young person where that information is required— (a) For the purposes of determining whether that child or young person is in need of care or protection…or (b) For the purposes of any proceedings under this Part of this Act….” • Mandatory disclosure • CE of CYFS v W Family Court 2000 - Munchausen's by proxy - Mother’s mental health records found to constitute information “relating to” the child. • Disclose summary of information that has a direct bearing on child’s present “need for care and protection”

18. Responding to a CYFS Request (2) S.22C Health Act 1956 A health agency may disclose information to CYFS where required by them to carry out their functions When to disclose under s.22C? Starting point: duty of confidentiality But consider… • S15 CYPF Act / mandatory reporting policy • Rule 11(2)(d) HIPC – disclosure lessen or avert a serious and imminent risk of harm • s.59 and s.69 Evidence Act - privileges that might apply if the matter goes to court

19. Transparency with the Patient Is there an obligation to inform your patient of CYFS notification or disclosure to third parties?

20. Transparency with the Patient Is there an obligation to inform your patient of disclosures or CYFS notification? In most cases, yes. Rule 8 HIPC - take reasonable steps to check accuracy of information (with the patient) before using it. Right 6 Code of Health and Disability Services Consumers Rights 1996 “Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive... [and[ the right to honest and accurate answers to questions…” Clause 3 Code of Rights - provider has a defence if they can show that they took reasonable actions in the circumstances to comply.

21. Transparency with the Patient Is it reasonable to withhold from the patient? Consider: • the significance of the information / disclosure / notification • the potential for disclosure to create risk to the child or others • what withholding grounds would apply if the patient requested their record (s27-29 Privacy Act): • where disclosure is likely to prejudice the patient’s physical or mental health s.29(1)(c) • where disclosure involves the unwarranted disclosure of a third party’s affairs s.29(1)(a) • the timing and context of disclosure to the patient

22. Crimes Act Amendments Child” means a person under 18 years of age. “Vulnerable adult” means “a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person. s.152 Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty— (a) to provide that child with necessaries; and (b) to take reasonable steps to protect that child from injury. - Must be a major departure from expected standards

23. Crimes Act Amendments Section 195 It is an offence for any person with - actual care or charge of a child or vulnerable adult, or who is a staff member at an institution where such a person resides, - to intentionally engage in conduct or to neglect a duty, - which is likely to cause suffering, injury or adverse effects to mental health or disability. - Must be a major departure from expected standards

24. Crimes Act Amendments Section 195A It is an offence for any person who: - is a member of a child or vulnerable adult’s household, or a staff member at an institution where such a person resides, and - has frequent contact with the child or vulnerable adult, and - knows the person is at risk of death, grievous bodily harm or sexual assault> as a result of an unlawful act or serious breach of duty by a third party, and - who fails to take reasonable steps to protect the victim from the risk.

25. Crimes Act Amendments Crimes Act - Observations • The Crimes Act obligations are largely consistent with existing professional practice obligations with regard to children and vulnerable adults • They add a layer of accountability for serious breaches • They underscore the need to exercise sound, proactive, clinical practice when confronted with risk to children and vulnerable adults • Ensure you have a robust policy/process for managing care and protection risk – consultation; documentation

26. Summary Primary obligation when faced with care and protection concerns... • Sound clinical management of your patient Sound clinical management is supported by legal provisions facilitating collection, disclosure and use of information Residual concerns should be addressed by consideration of (mandatory) reporting to CYFS, and emergency disclosure provisions.