Confidentiality and Legal Privilege Issues for Clients
Background legal information
WellStop has a very difficult balancing act to carry out in relation seeking to protect client rights while at the same time ensuring public safety in relation to issues of privacy and legal privilege.
Our current contract for adult clients states that "WellStop's purpose is to prevent further offending. Ensuring victim and community safety is our first goal." We also say that "Information revealed in the course of your treatment at WellStop is confidential, except between WellStop staff and the agencies or individuals who are listed in the attached release of information."
Our Limits of Confidentiality document also states: "The following items are also an exception to confidentiality and must be promptly reported by staff to the appropriate authorities:
Indications of intent to harm yourself or another person will be reported to Mental Health Services or other persons or agencies that can ensure your or any other person's safety.
Violations of Court Orders will be reported to the Community Probation Service or the appropriate statutory agency that has the responsibility to enforce the relevant court orders.
Information, which leads staff to believe that a child may be in need of care and protection, will be reported to Child, Youth and Family Services.
Disclosure of past abuse of a child currently under 16 years and who has not been offered counselling or support will be reported to Child, Youth and Family Services. Child, Youth and Families Service may share reports of sexual offending with the Police.
Disclosure of re-offending that occurs while on the WellStop programme may be reported to Child, Youth and Family Services if a child is involved, or to the Probation Service or the Police.
Disclosure of serious offending which if not reported would endanger the maintenance or enforcement of the law, pursuant to Section 6, Principle 11 (e)(i), Privacy Act 1993 may also be reported to the Police.
Only sufficient information to meet the requirements of the above situations will be given.Any other information a client has given that is not relevant to a specific situation will be treated as privileged.Staff must discuss any action with a senior member of the agency as well as you, before acting on these clauses, unless to do so would place somebody at risk."
At times the principles of victim and community safety and of upholding privilege may be in conflict. This is more likely to happen when working with non mandated clients who have not been convicted for their offending. Recently we had a situation where a client referred himself to us but wished to continue to live with the daughter who he abused and to have treatment with WellStop without any involvement from CYF. This situation was untenable, especially as no one outside the family had talked to the girl about the extent of the abuse.
Under the exceptions to our contract we notified CYF of the offending and in accordance with their agreement with the Police they passed this information on to them. Subsequently the Police sought information from us about what the client had disclosed. We indicated this information was privileged and we could not pass it on to them. The rationale behind this is that our contract and commitment to community safety obliges us to ensure the safety of the victim but does not require us to divulge this information to police unless this is in the interest of ensuring the victim gets help. Our other contract obligations require us to protect client confidentiality. The police were unhappy with this and they obtained a search warrant in have access to our information. We continue to state that this information cannot be used as evidence as it was obtained in a therapeutic relationship that is legally privileged.
There are two previous occasions in which information from our files has been seized by police under a warrant. These have had different outcomes and WellStop has contributed to some case law around the issues of privilege.
Legal Privilege means that the information has been obtained through the nature of a confidential relationship and is thus cannot be used as evidence. It is often assumed that all conversations with therapists, clergy and lawyers are legally privileged. However, there are limits to confidentiality in all these situations.
The issue of whether information is legally privileged is a decision made by the Judge on the basis of case law and the balance of public interest versus the individual's right to privilege. In 2002 we had a file seized as a result of the offender disclosing information relating to other past offending of an historical nature at a system review meeting. The victim of that offending was now an adult. One of the people at the review meeting (not the victim, who had never laid a complaint) notified the police that we held this information. The police seized our file under warrant and sought to use the information from his file in a subsequent prosecution.
In his judgment regarding this case (Egerton vs. NZ Police May 2002) Judge CJ Thompson stated:
"The offender's disclosure is fundamental to the success of the Stop programme. If the offender will not admit and confront what he has done there is little point in his attendance."
"It is plain that if it became known that anything said in the course of therapy was open to uninhibited use by the Police two consequences would logically follow. First, there would be a substantial disincentive for offenders to attend at all, or to be frank to the degree necessary for the programme to be effective. Secondly, there would be a substantial disincentive for counsellors or therapists to keep adequate notes. That would inhibit both the likely success of the programme and would create an ethical problem for them."
"There was assurance of confidence given. The broad limits on that confidentiality were as I understand them:
If the counsellor or therapist reasonably believes the offender is at real risk of self harm or of harming others.
If the counsellor or therapist reasonably believes the offender is currently offending in a sexual way.
If the counsellor or therapist reasonably believes there are young victims who have not been offered counselling or other assistance.
None of those exceptions applied at the time the counselling was current in this case."
"The information in question here was a disclosure about offending against a person who was by then a mature adult. Here the offender made an admission of the offending against DK. That admission is not of course the only way in which this matter could have come to light. It has always been within a victim's power to make a complaint. But had this information not been obtained by the Police it is extremely unlikely that DK would have chosen to make a formal complaint."
Judge Thompson concluded "It is in my view that, having held in the public interest in preserving the confidentiality of these records outweighs the public interest in bringing a prosecution based on the evidence thus obtained, I should exercise that discretion." He upheld this information as privileged and as a result the case was dismissed.
A further WellStop case went to the Court of Appeal, (Queen vs. Gulliver May 2005). This was a much more serious case where a client disclosed to a WellStop therapist that he had sexually violated and attempted to kill a pre school child. In this situation WellStop made the decision to pass on this information to the Police but the lawyer for the defendant argued that it was privileged. The Appeal Court upheld the decision of the Lower Court Judge Gendall that this disclosure was not privileged and that evidence from the file, and from the WellStop therapist, should be admitted. Judge Gendall stated "Of course confidentiality counts but it must be weighed against other claims such as matters of restitution and social justice. When that weighting is carried out on the facts and contents of this case the public interest clearly requires that the evidence be given at trial."
What these two cases show is that there is no automatic expectation that the Courts will uphold the principle of therapist/client privilege. The response of the Court will depend on the facts of the case. Nevertheless, it is important for WellStop to seek to uphold the concept of privilege as if the police routinely sought information from us under warrant this would lead to non mandated referrals not being made and the reductions in re-offending, and prevention of further victims as a result of our therapy, would not occur.
Thus, in the most recent example we notified CYF but refused to supply information to the Police. The rationale was that the information provided to CYF was necessary for the care and protection of a child under the age of 16 years. However, the WellStop disclosure should not be used as the basis of prosecuting the offender as there were other more appropriate means of gaining this information. Further, that if it became known amongst the legal fraternity and the community generally that disclosures made in the context of a therapeutic relationship would routinely be given to the Police, then referrals of non mandated men would be severely reduced and our ability to protect the community from re-offending as a result of treatment would be severely affected.
When the Police issued a warrant we had an option to contest the validity of the warrant. If we were to do this we would insist that the file seized under warrant was sealed until such time as a hearing contesting the validity of the warrant could be carried out. In practice this is usually only useful as a delaying tactic as, unless there is a technical issue with the process the Police have used to obtain the warrant, an action to contest its validity will not succeed.
A better way to contest is to carry out a legal action claiming that the information obtained by the Police is privileged and cannot be used as evidence in Court. (As in the Egerton case)
Generally we will claim privilege, however in situations such as the Gulliver case we need to recognise that the public right to safety from men who represent a serious threat to the community can outweigh their right to legal privilege and we need to approach the police and pr information to them under the final confidentiality principle "Disclosure of serious offending which if not reported would endanger the maintenance or enforcement of the law, pursuant to Section 6, Principle 11 (e)(i), Privacy Act 1993 may also be reported to the Police." These situations are complex and support from the Regional Manager, who will obtain legal advice, should always be sought. The attached document is a guideline for action.
Procedures where legally privileged information is likely to be an issue
If a situation arises in which WellStop makes a notification to Oranga Tamariki the therapist should consider whether issues of client privilege are likely to arise with Oranga Tamariki passing this information on to the Police.
If there is a possibility of Police seeking information from us about a client the CEO and Regional Manager should be notified.
The CEO will consult with the WellStop Lawyer, Cushla Jamieson, of Grigg and La Page in Lower Hutt. Cushla has been involved with us through the cases discussed earlier and has a good understanding of the issues. Each case will be carefully considered on its issues by the Regional Manager and our legal representative.
Normally our stance will be to supply information to Oranga Tamariki for any child under the age of 16 years but to try and avoid compromising our ability to carry out effective therapeutic practice through opposing supplying information direct to the Police.
An exception to this would be where we believed the offender represented a very serious risk to community safety, such as in the Gulliver case. In this situation we may choose to go to the Police directly. Generally, we would try to encourage the offender to take this information to the Police and support them through that process. However, if they are not prepared to do this we would contact the Police ourselves.
If we become aware that the Police are likely to seize a file by warrant all notes relating to the client should be copied. Copies of information on our database should be printed off and placed on file so the Police have no reason to access our database. In some situations a decision may be made to oppose the validity of the warrant and the file will be sealed until a hearing before the Judge can be arranged.
If the file is seized we will seek legal advice. This may well result in us choosing to inform the Police that we intend to claim privilege for this information. An application to prevent the use of this information in evidence can be made either by ourselves or by the Lawyer for the Defence.
Regional Managers in the regional service must manage complaints received about the service. The CE must manage complaints made about a Regional Managers of a regional office. Staff must encourage client feedback in their practice and engage and constructively to their feedback and complaints.
Feedback must be routinely sought from and responded to with clients, their whānau/supports and other stakeholders
Staff must be informed about and if necessary trained in using our feedback and complaints processes and supporting tamariki and vulnerable adults to use them
Clients and their whānau must be informed about our feedback and complaints processes at an early stage of engagement. The information must cover their rights to:
participate in the process, access support and advocacy and have a full right of response
a fair and impartial investigation and decision
not be adversely treated for making a complaint.
The Wellstop complaint process is displayed in all client waiting areas. Clients are also advised of WellStop's complaint process in our written brochures.
Feedback and complaints data is used for learning and improvement purposes.
Making a complaint or giving feedback
Feedback may be given and complaints made verbally, electronically or in writing to the Manager of the specific regional service. If the complaint or feedback is about that person, it should be directed to the CEO
Clients or others who make a verbal complaint should be asked if they want to to put their complaint in writing.
A summary of the verbal complaint and steps taken to resolve the issue will be written up by the staff member dealing with the complaint.
The client should also be given the option of accessing external agencies for support (eg the Health and Disability Commissioner, Disability Law Advocacy, union representation, community law centre, VOYCE for children and young people in care, Office of the Children’s Commissioner.)
Acknowledgement and recording
The complaint must be entered into the Complaints Register by a Regional Manager who has access. CEO must be notified.
Feedback received from a client about a staff member should be passed on to that staff member. A record of the feedback should be maintained.
If the client asks to have another person represent them in their complaint, communication must be with their representative.
A written acknowledgement of receipt of the complaint should be sent to the client or their representative within five working days. This can be done electronically and must be uploaded into the Complaints Register in SharePoint.
Timeframes to respond and investigate complaints
Verbal response within 24 hours
Written acknowledgement complaint within three working days
Completion of investigation within five working days
Written complaints must be responded to in writing or by email within seven working days.
The following steps are taken to investigate complaints:
The immediate Regional Manager of the staff member about whom the complaint has been made, telephones the person complaining to seek further information. If it is a Manager that is being complained about, the CEO will make the phone call.
The immediate Regional Manager informs the person or people being complained about and advises the details of the complaint and asks for a response to the complaint within 24 hours.
If the facts are disputed, the Regional Manager will seek more information (for example, from others present).
The Regional Manager determines whether the complaint has substance.
The Regional Manager documents the complaint, the evidence, the findings and any outcomes in the Complaint Register.
The Regional Manager alongside the staff member/s implements the agreed outcome or decides on an appropriate remedy.
The staff member/s involved may choose to have a support person with them at any interviews or meetings.
It is important for anyone investigating or mediating a complaint not to jump to any conclusions but to hear both sides of the story. This means being fair to both parties involved in the complaint throughout the investigation. The person/people the complaint is against should be:
Given all the information about the complaint, including the name of the person making the complaint (where appropriate)
Given an opportunity to present their side of the story
Told of their right to have a support person.
Finalisation of complaint
Once the complaint has been investigated and the matter has been resolved, the responsible Regional Manager will ensure that a letter/ email is sent to the person who made the complaint advising them of the outcome. The letter/ email will advise who to contact if the recipient is not satisfied with the outcome of their complaint, or the actions taken to resolve the issue. The letter may include the contact details, for example, of the Regional Manager, CEO or Chair of WellStop's Board, Professional Body, Office of the Privacy Commissioner (for privacy complaints) ACC, or other funders of the service. This letter can be sent electronically where applicable and uploaded into the Complaints Register in SharePoint. Feedback should be sought from the complainant and staff member about the resolution process either by letter or verbally.
Where the matter is unable to be resolved between the parties, or it is inappropriate for the complaint to be dealt with by the staff member being complained about, the complaint may be escalated to the next level of management or an appropriate external body.
Complaints about management may be escalated to the CEO or Chair of the Board.
Complaints made about staff are to go to the respective Regional Manager.
Complaints made about Regional Manager are to go to the CEO.
Complaints regarding service provision funded by a third party (e.g. Corrections, ACC, ) may be made directly to the funder.
Complaints Involving a Breach of Professional Code of Ethics may be made to the appropriate professional body.
Complaints about privacy may be referred to the Privacy Commissioner.
Serious breaches of WellStop's code of conduct
Serious breaches of WellStop's Code of Conduct will be dealt with via WellStop's disciplinary process.
All Complaints are documented in the Complaints Register which is on SharePoint. To maintain the confidentiality of any staff members involved, only Regional Managers /Senior Managers have access to the Complaints Register and have rights to upload information into the Complaints Register.
The Regional Managers enters the following information into the Complaints Register for each complaint:
Date the complaint was made
Nature of the complaint
Who dealt with the complaint
All documentation in relation to the complaint (including meeting minutes)
Outcome of the Complaint (any actions taken as a result of the complaint)
Copy of the letter (or file path where a copy of the letter can be located) sent to the complainant advising them the outcome of their complaint. If the complaint was made verbally, a note is made on the Complaints Register of the outcome of the complaint.