C H A P T E R O B J E C T I V E SSample Page
In this chapter we aim to:
› debunk the myths that surround conf dentiality
› demonstrate that conf dentiality is only one of many important
aspects of information management
› explore the interaction between law and ethics in the
management of sensitive information
› present a cycle of information management which includes
collecting, recording, storing, amending, and most critically,
permitting or refusing access to sensitive information
› introduce the topic of whistleblowing as an information
management issue.
5 Managing Information
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What does ‘managing
information’ mean?
Confdentiality and more
Consider these human service situations:
• A worker makes a comment about a client on Facebook.
• Electronic client fles are hacked.
These are relatively obvious situations of breaches of client-related confdentiality.
But confdentiality is a concept used too loosely in the health and human services and
subject to myth-making. McMahon (2006a), in writing on health care work, describes
confdentiality as having ritual status, and Clark (2006) points out in relation to social
work that the oratory about confdentiality is not reflected in practice.
It is necessary to explode some of the folklore about confdentiality, for example:
• There is a myth among sections of the human services that confdentiality is
absolute. For instance, human service workers will often argue that they must
withhold certain client information when working with others in professional
teams because of an erroneous understanding of confdentiality. In fact,
withholding can impede the communications between workers, family members,
and clients that are essential for good service outcomes (for example, see Marshall
and Solomon 2004) and may lead to other forms of legal liability.
• Human service workers cherish the belief that they are especially vigilant about
confdentiality and are often righteous about its status in their work lives. In fact
they often do not take it seriously enough in practice (Clark 2006; Cumming
et al. 2007; Kennedy 2009).
• Social workers and psychologists commonly subscribe to the myth that their
codes of ethics make absolute statements about confdentiality, even when those
codes do not, or do not accommodate completing imperatives (Swain 2006), or
provide sufcient specifcity in complex practice situations (Kampf and McSherry
2006).
• There is yet another myth that client information is most at risk from ‘outsiders’.
However, ‘insiders’ in health and human service systems are a bigger threat to
client confdentiality. Human service workers have browsed electronic client data
bases, as evidenced in high profle Centrelink and child protection cases (Peters
2007; Schraer 2015), are often careless about talking together in public places
and routinely transport, and sometimes lose, sensitive client information (for
example, Towell 2014).
All in all, the problems with understanding and use of the concept of confdentiality
in the human services are such that Swain (2006, p. 93), talking of social work, argues
persuasively that the profession should ‘come clean’, and while acknowledging the
importance of the idea, accept that it can ‘be only infrequently guaranteed’.
This assertion that confdentiality is beset by mythmaking does not compromise
the ethical and practical signifcance of confdentiality, and it is enshrined in
human services codes of ethics. The Australian Association of Social Workers
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(AASW) Code of Ethics addresses information privacy/confdentiality in respect
of clients quite comprehensively in clause 5.2.4 and records management in
5.2.5. The Australian Community Workers Association (ACWA) Code of Ethics
is much less detailed, but values confdentiality of client information as one
of the listed responsibilities of welfare and community workers. Other human
service professional codes, like those of the Australian Society of Rehabilitation
Counsellors (ASORC) and the Australian Psychological Society (APS) contain
similar provisions about confdentiality.
MYTHS AND REALITIES
Myth: Human service workers are ethically bound to maintain confdentiality at all costs.
Reality: Human service workers often breach their clients’ confdentiality. Sometimes they
are obliged to for legal reasons. Sometimes they choose to do so for moral or ethical
reasons, especially when others are at risk. At other times they err in practice as attested
to by some legal cases and many allegations made to complaints bodies. There are
both ethical and legal limitations on confdentiality. For example, see clauses 5.2.1
(b) and 5.2.4 (f) of the AASW Code of Ethics and clause A.5.2 of the APS Code of
Ethics, which acknowledge exceptional circumstances in which other interests may
support the need for a breach of confdentiality.
Beyond confdentiality
Not only is confdentiality and it scope misunderstood, it tends to overshadow many
other critical aspects of information management in the human services. In the
following scenarios, some but not all involving clients and confdentiality, workers
and agencies face a range of difcult questions about handling information:
• An employer monitors staff emails.
• A worker includes another’s work in their written report and does not acknowledge
the source.
• An agency loses a USB which contains a sensitive report.
• The minutes of the meetings of the Board of Directors of an agency contain many
inaccuracies.
• A worker suspects that one of their clients may be a threat to another person.
• A worker comes across a pornographic website bookmarked on their colleague’s
work computer.
• A colleague frequently acts as if a little affected by perhaps drugs or alcohol.
• An agency to which a worker refers clients constantly mishandles those clients.
• An agency has information security management procedures in place but work
pressures make it very hard for workers to comply with them.
• Details of a high profle public fgure are accessible to workers on an agency
electronic data base.
Here there are questions about reporting information or not, putting information
at risk, accessing information or not, acquiring information advertently or otherwise,
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using information created by others, and so on. Thus this chapter addresses the
various obligations, including legal and ethical ones, relevant to human service
agencies and workers as they manage all sorts of information, particularly sensitive
personal information, in diverse circumstances and under increasingly complex
information management regimes in the workplace. While the familiar concept
of confdentiality is explored, it is deliberately contextualised in a wider treatment
of information management. Like all other information matters, confdentiality is
subject to a complex pattern of social, legal, employer, and personal imperatives, as
has been emphasised earlier in this book.
Interaction of human service
practice, ethics and law
Traditionally, information issues have been left largely to organisations and
practitioners and their professional codes of ethics, although there has long been
legislation in each jurisdiction about the management of government records,
instanced by the Archives Act 1983 (Cth). The situation changed with privacy
legislation enacted by the Federal Government in the 1980s and by many states
later. The Privacy Act 1988 (Cth) originally applied to the operations of Federal
Government departments only; it contained eleven Information Privacy Principles
(IPPs) concerning the collection, use, security, and disclosure of personal information.
The Privacy Amendment (Private Sector Act) Act 2000 (Cth), including 10 National
Privacy Principles (NPPs), later amended the original Act so it applied also to large
private organisations, including not-for-proft ones, and to any practitioner or
private organisation offering health services, or collecting personal information. (See
also Australian Government 2011; ALRC 2008.) In March 2014 a single set of 13
privacy principles, the Australian Privacy Principles (APPs), contained in Schedule
1 of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 replaced the
IPPs and NPPs.
Most human service agencies are now covered by a regime regulating
how personal information should be handled (see APP1). But as always, the
legislation is applied through human service perspectives on ethics, procedures
and practices.
The cyclic schema in Figure 5.1 includes a number of information management
topics or phases, consistent with the Australian Privacy Principles. It also depicts
a symbiotic relationship between legal and human service practice factors in good
information management. It is founded on the following two positions:
• Quality professional information management practices are generally consistent
with legal requirements.
• Legal requirements are generally consistent with quality professional information
management practices.
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FIGURE 5.1 CYCLE OF INFORMATION MANAGEMENT IN THE HUMAN SERVICES
Assessment of quality of
information and procedures
Assessment of legal
requirements and risks
Agency and
worker purpose
• Collect (or acquire)
• Amend
Provide access
or disclose Record
Store
The fusion between these positions means it is somewhat artifcial to try
to segregate and focus on legal aspects, even though that is what this chapter
attempts to do. Positioned at the centre of this cycle are the agency, the
worker, and their purposes. The mandate and aims of the agency are critical in
determining the purpose of each information-processing activity. This is very
important as the outcome of any legal challenge is likely to depend very much
on whether arguments put by the agency and worker about their professional
standards of practice are defensible. The agency has responsibility for ensuring
acceptable information policies, procedures and practices are established and
managed. The worker accommodates ethical, agency, and personal demands in
their own practice. Both have responsibility for monitoring legal obligations and
risks in their mutual and individual work activities.
Collecting (or acquiring) and
amending personal information
What information is collected deliberately will depend on agency and worker
purposes. How it is collected and by whom, and how it is amended, will
invoke APPs 3, 4, 5, 10, 12 and 13. The collection of information must be
consented to, necessary, accurate, lawful, not unreasonably intrusive, and the
person about whom information is collected must be fully informed about
what is being done and why. These APPs relating to collection may not apply
to information acquired incidentally until it is recorded formally in some way,
and then principles about records and storage will apply. While these APPs
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are consistent with human service principles of ethical practice, how they are
operationalised in practice hangs on the word ‘purpose’, which is why it is
positioned so centrally in the cycle.
Refl ect
What information is collected by workers in a specif c situation is a usually a question of human
service practice rather than law. The main thing is that the agency can justify its answer in terms of
its mission, policies, program, intervention, and assessment models, and in terms of what would be
seen more widely as acceptable human service practice in this area.
Youth workers with responsibility for assisting young people to establish themselves in
independent living usually collect a variety of information about their clients. Should they collect
information about clients’ early biological family experiences? If so, should they record all of
the information they are given by their clients? Should aged-care workers collect and record
information about the family members of their residential clients? What if those family members are
estranged from the client and no longer in contact with them? How do you justify your answers?
Agencies also need to have processes in place for ensuring that information is
accurate and that it can be amended when required.
A man found guilty of murder, and now a prisoner, complained to the Department of
Corrective Services that his case conference report contained an inaccurate paragraph
about the armed robbery which led to his conviction. He argued that it would be unfair to
retain the paragraph in the report and sought amendment of the report by removal of the
paragraph. The Department agreed that there was an inaccuracy in that paragraph and
agreed to attach a statement to that effect to the report. The prisoner was not satisfied
by this response and sought external review by the Information Commissioner. The
Information Commissioner did not find that the disputed information would disadvantage
the complainant, particularly given that a notation correcting the inaccuracy had been
attached to the report. The Commissioner found that any possible prejudice to the
complainant was outweighed by the public interest in maintaining complete records and
confirmed the Department’s refusal to amend the report as the complainant requested.
Re Larkman and Department of Corrective Services [2014] WAICmr 1 (25 February)
Recording information
Formal records, in hard copy and increasingly in electronic or other digital forms,
are multitudinous in the human services. They include notes of meetings, case
notes, assessment reports, emails, court reports, logbooks, case or service plans,
correspondence, and research or project reports. What records are made, when, and
their content, structure, language, and style are largely matters of good human service
LAW IN
PRACTICE
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practice rather than of legal prescription. Where documents, such as client fles, contain
personal information, APP 10 requires that the content be accurate, complete, relevant
and up-to-date (see Australian Psychological Society 2012). This may seem overly
obvious, yet human service client records are renowned for their technical inaccuracies,
incompleteness, frst impression biases and the absence of critical data about how and
why assessment and intervention decisions were arrived at (for example, Kagle 1991;
Reamer 2005; Glicken 2008; Grisso 2010, Ireland et al. 2012).
If there is a legal dispute about these records, then credibility of sources,
comprehensiveness, logic, rationale, balance, relevancy, and concurrency of records
and events will all be important factors. In determining appropriate standards for record
keeping, courts might consult academics with expertise in record keeping and professional
education (for example, Kagle 1991; Ames 1999; Kane, Houston-Vega & Nuehring
2002), agency policies and professional and registering body codes of ethics and conduct.
A psychologist prepared a treatment report about a patient. On the basis of information
from the patient only, the report included information about the patient’s ex-husband
and the marital relationship. The ex-husband complained to the Psychology Board that
the report made purportedly factual statements about his abuse of his ex-wife and used
overly emotive language. The Tribunal agreed with the ex-husband and said ‘it is important
that reports present material precisely, so that facts can be distinguished from hearsay,
professional opinions and interpretation and that they are written in a respectful and nondiscriminatory manner. This report was not’ (para 10). The Tribunal found that the psychologist
had engaged in unsatisfactory professional performance and she was cautioned.
Psychology Board of Australia v Costantino (Review and Regulation) [2013] VCAT 586 (24 April)
Complaints were made to the Psychology Board by a client and his mother about the
conduct of a psychologist in relation to the client and his sibling who was also a client.
The complaints were narrowed to issues about written documents allegedly contrary
to the APS Code of Ethics. It was argued that two letters of referral written by the
psychologist lacked clarity, contained incomplete and poorly constructed sentences and
spelling errors and did not clearly distinguish fact from hearsay and opinion. It was
unclear in one letter whether a psychological condition was or was not being diagnosed.
Second, it was alleged that both letters may have breached client confidentiality in that
they contained a level of detail which may have gone beyond the scope of the original
consent to disclosure. The Tribunal found that the psychologist’s reports were confusing
and evidenced an uncritical partisan position on a family dispute. The Tribunal found
that the reporting did amount to unsatisfactory professional conduct. The Tribunal did
not find that the psychologist had breached the confidentiality of the client in question
nor was she required to obtain additional consent from him to communicate with his
doctor. The Tribunal imposed conditions on the psychologist by way of an undertaking.
Psychology Board of Australia v Wu [2014] QCAT 65 (20 February)
LAW IN
PRACTICE
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Storing information
Much could be said about practical questions of space and administration, not least
about the particular challenges posed by electronic and digital records systems which
will be returned to later. But for now, two legal questions are a key focus.
How should records be stored?
The answer here, from a position of both law and human service ethics, is ‘safely’.
APP 11(1) states ‘If an APP entity holds personal information, the entity must take
such steps as are reasonable in the circumstances to protect the information: (a) from
misuse, interference and loss; and (b) from unauthorised access, modifcation and
disclosure.’
What are reasonable steps in the circumstances? Guidelines promulgated by bodies
such as privacy and information commissioners help determine them. Increasingly,
organisations develop their own policies and procedures about how and where data will
be stored and accessed. This latter issue is relevant to many workers now who are carrying
information with them from place to place, including ofce to home. The agency policy
on this will be important to their defence if anything goes amiss, and the agency policy
in turn will need to be consistent with privacy guidelines and general human service
standards. Agencies that utilise cloud storage services face additional issues in ensuring
the security and integrity of such storage, protection by setting adequate passwords or
other access methods, determining who has access to passwords, and the effectiveness
of arrangements made to regularly back up digital records. The rapid increase in use of
mobile devices and the ability of workers to log on to work computers remotely magnify
these challenges of ensuring safe and secure storage.
A person had several sessions with a counsellor and discussed some concerns about
their workplace. Several days later the person attended a work meeting and believed
from the matters discussed that the employer had been told of the things discussed
with the counsellor. The person went back to the counsellor and was told that the earlier
session notes had been lost. The person complained to the Privacy Commissioner that
they had not been told that information might be divulged to their employer and about
unsafe and insecure storage of their counselling notes. The counselling service denied
divulging information to the employer and the Commissioner confirmed that it had not
disclosed information. The service agreed that one page of notes was missing from the
complainant’s file but after investigating the service’s storage and security processes the
Commissioner decided that it had taken reasonable steps to protect clients’ information
as required by NPP 4.1. The Commissioner made suggestions for improvements to the
agency’s notice to clients about information management and closed the case as the
complainant’s privacy had not been interfered with.
G v Counselling Service [2009] PrivCmr 9 (31 August)
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PRACTICE
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For how long should records be stored?
Australian Privacy Principle 11.2 addresses the issue of personal data which is
no longer required by an entity. State and territory governments also increasingly
prescribe—through legislation, regulations, policies, and state records schemes—
the length of time necessary for some organisations and practitioners to keep client
records, and when information may be destroyed. For example, the Victorian Health
Records Act 2001 and the New South Wales Health Records and Information
Privacy Act 2002 require that health practitioners keep adult client records for seven
years after last attendance and child records until that person turns 25. In addition,
the National Enquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families (Wilson 1997) recommended that records of those
children removed from their families never be destroyed, and state records schemes
are incorporating this requirement although there is a tension between retention for
historical and cultural reasons and disposal requirements under privacy laws. Some
of these legislative retention imperatives are refl ected in the APS Code of Ethics,
which commands that client records be kept for seven years (8.2.2) and for clients
under 18 years until the client turns 25 years (8.2.3).
Agencies and private practitioners may be specif cally covered by an Act,
regulations, Code of Ethics or scheme, either directly or under the terms of a contract
with government for outsourced work. If they are not, they will still be judged by
general standards of acceptable practice if they face legal challenge. This means it
is crucial that they have retention policies consistent with recent legislation and
government policies. The implication for all workers is that their day-to-day work
records have a legal life even longer than their own. This is a stimulus for workers
to think carefully whenever recording something, because of the possibility of being
called to account for records many years after they were made.
Permitting or denying access
to information
All human services agencies should have in place policies and procedures for
determining who can access agency and client information and under what
circumstances (see APP 5, 6, 7, 8, 9). There are legal reasons for this but again,
human service ethical and practice considerations are also vital.
Refl ect
Should clients be allowed to read their own f les? What if the information contained in those f les
contains notes that are critical of the client or their family members, or opinions that the client is
likely to disagree with or be upset by? What if those notes include contact details of staff or disclose
personal information of other people such as estranged family members or others in dispute with
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the client? The answer to these questions is again as much a question of professional ethics and
agency policy and practice as one of law, although freedom of information and privacy law are
premised on rights of access. APP 12 entitles the individual to have access unless exceptions apply.
In good human service practice, the articulated service ideology and intervention approaches
being used by an agency will indicate the appropriate procedures and practices for sharing or
not sharing information with clients. The AASW Code of Ethics at 5.2.2 (b) requires among other
things that social workers discuss with clients their right of access to records and 5.2.5 (d) covers
social workers’ responsibility for ensuring that clients have reasonable access to records concerning
them. Adequate practical safeguards must be in place to help clients understand and cope with
information in their f les, and to protect the conf dentiality of others referred to in their records.
Two sets of legal imperatives bear on questions about access to, or release of,
information. At times, these may seem contradictory and, as always, competing
demands need to be balanced. One set of imperatives protects information, and the
other allows or compels disclosure.
Legal imperatives to protect information
Common law and conf dentiality
Conf dentiality has long been accorded importance for philosophical and public
interest reasons both in the law and in professional ethics. In common law there are
equitable and torts actions for breach of conf dence. If an agency or worker breaches
a duty of conf dentiality, one or both of them could be sued by the damaged party,
in a private or civil suit. If conf dentiality is an express or implied term in a contract
between a human service provider and client, a breach of conf dence by an agency or
worker could also result in a civil suit for breach of contract. Express or implied terms
prohibiting disclosure of information are also common in employment contracts
and all employees are bound by them. If there are agency procedures for consent to
release information or access client information systems and workers fail to comply
with them, they may face disciplinary action, if not dismissal, under industrial law.
The legal picture in these areas of civil law is complex and evolving and which, if
any, action is taken will depend on the legal strategies adopted by the plaintiff ’s lawyer
at the time. Remedies may include an award of damages or perhaps an injunction to
prevent continued or further disclosure. Defences to a breach of conf dence action
involve arguments about public interest and legal compulsion, and are discussed
further later in this chapter where imperatives to disclose are discussed. For all the
reasons discussed in Chapter 7, civil legal actions of this type against human services
agencies and workers have hitherto been uncommon in Australia. But that is no
reason for complacency.
Legislated protection of information
Most workers and ex-workers are covered by statutory provisions that prevent them
from disclosing information, or protect them from being compelled to do so. As
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McMahon (2008) points out these multiple provisions vary across jurisdictions
and workers are well advised to familiarise themselves with those that are relevant
to the type and place of their work. All jurisdictions except the Commonwealth
and Queensland now provide some legal protections for sexual assault victims
counselling records (Jillard, Loughman & MacDonald 2012). Some examples of
statutory protections, over and above privacy legislation, are as follows:
• Sections 10D and 10H of the Family Law Act 1975 (Cth) address confdentiality
requirements of family counsellors and the inadmissibility of information received
by them during family counselling.
• Section 207 of the Social Security (Administration) Act 1999 (Cth) provides
protection for Centrelink to resist court and tribunal demands for some documents.
• The Evidence Act 2008 (Vic) Part 3.10 provides for various forms of privilege
for some confdential information, including client legal privilege, professional
confdential relationship privilege, religious confessions privilege and sexual
assault communications privilege.
• The Evidence Act 1929 (SA) s 67E exempts some communications made by
victims or alleged victims of sexual offences in a therapeutic context on the
grounds of public interest. In this case, the public interest is in maintaining
confdentiality and not in breaching it.
Non-disclosure requirements more commonly derive from the employer
organisation’s general legislative mandate. All public servants are covered by secrecy
provisions under relevant state or Commonwealth Acts and regulations. More
specifcally, for example:
• Section 142 of the Hospital and Health Boards Act 2011 (QLD) precludes the
disclosure of confdential information unless required or permitted under the Act.
• The Mental Health Act 2007 (NSW) s 189 prohibits disclosure of information
gained by anyone in the course of administering or executing the Act itself.
• Section 9 of the State Service Act 2000 (Tas) sets out the general confdentiality
provisions for public servants in the context of the State Service Code of Conduct.
• Under s 28 of the Disability Services Act 1986 (Cth) workers are bound by secrecy
provisions. However, this is an interesting example of multiple legal requirements
as these provisions expressly exclude disclosures relevant to the purposes of the
Social Security Act 1991 (Cth).
A worker who breaches these types of statutory provisions may well have much
more to fear than in a private suit by an injured party. The full force of the state
can be brought to bear on them if their breach is detected and pursued, and the
penalties involve fnes and even imprisonment. For instance, intentional acquisition
of protected information can result in imprisonment for up to two years under the
Social Security (Administration) Act 1999 (Cth) s203.
Privacy legislation and non-disclosure
The right to privacy is enshrined in the UN Declaration of Human Rights, Article
12. As evident in this chapter so far, governments have actively legislated about
information privacy and continue to review privacy legislation. The Information
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Commissioner can investigate alleged breaches of the Privacy Act 1988 (Cth) and if
they are substantiated, redress including compensation may be ordered. Disclosure
and access are only two—but fundamental—elements of privacy law.
As explained earlier this chapter, most human service agencies and workers now
are likely to be caught within the scope of the APPs. In some of the states, complex
webs of privacy and health records legislation now exist. In states where there is no
privacy legislation, some form of administrative regime is in place. The main pieces
of privacy legislation in each jurisdiction are shown in Table 5.1.
Agencies and workers are wise to inform themselves about the Acts or schemes
and organisation codes that are relevant to their practice. Proven breaches under
Privacy Acts or schemes can result in agencies being required to take various forms
of corrective action. Breaches caused by a worker, particularly if the worker in turn
infringed agency codes, can lead to disciplinary action or dismissal.
Defamation and risks of disclosing some forms of information
This may seem a curious topic to include in this chapter. However, it relates to legal
risks of communicating sensitive information or opinion, risks likely to become
more prominent in future in view of email and internet use, including social media
(Jebb 2003; Rolph 2011; MacInnes 2011). Defamation may come into play when
TABLE 5.1 MAIN INFORMATION PRIVACY LEGISLATION

Jurisdiction	Main Act
Cth	Privacy Act 1988 Australian Information Commissioner Act 2010
ACT	Privacy Act 1988 (Cth) Information Privacy Act 2014 Health Records (Privacy and Access) Act 1997 Human Rights Act 2004
NSW	Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002
NT	Information Act 2000
Qld	Information Privacy Act 2009
SA	No specifc legislation. Premier and Cabinet Circular
Tas	Personal Information and Protection Act 2004
Vic	Privacy and Data Protection Act 2014 Health Records Act 2001 Charter of Human Rights and Responsibilities Act 2006
WA	No specifc legislation Freedom of Information Act 1992 and State Records Act 2000 have some application

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workers are discussing and writing about each other or their clients. It may also
invoke allegations of ethical breaches as respectful treatment of both clients and
colleagues is addressed in many professional codes of ethics (for example, AASW
Code of Ethics clause 5.3 (h), Psychotherapy and Counselling Federation of Australia
(PACFA) Code of Ethics 2.3, and APS Code of Ethics A.2).
Defamation law attempts to balance the public right of free speech with the private
right to protect one’s reputation. Anything that damages a person’s reputation—
even ridicule—may be defamatory. For example, the following actions could perhaps
raise the question of defamation:
• emailing others that the manager, Ms X, is incompetent
• writing that a client, Mr Y, is crazy
• saying to others that referral agency Z failed in its duty to a client.
This has been a complex area of law as until comparatively recently, eight sets
of common law and legislative schemes with a mix of civil and criminal provisions
applied across the Australian states and territories. A more uniform approach is now
being taken across Australia. All states and territories have adopted a version of the
same legislation, the Defamation Act 2005, to regulate defamation. However, there
are still some variations between the precise provisions adopted by each state or
territory. There are various defences to a defamation action under the Defamation
Act 2005, such as truth, fair report on proceedings of public concern, honest
opinion, justifcation, absolute privilege, qualifed privilege, innocent dissemination,
and triviality. Absolute privilege will generally apply to information put before courts
and tribunals by workers.
For the purposes of this chapter, it is enough to note that all workers make
defamatory assertions quite frequently as they go about their work. Some of these
are gratuitous, such as recording that a client is ‘crazy’; and some are intrinsic to the
work itself, for example, when professional opinion about the inability of a family
to care safely for a child is recorded in a case note. If making gratuitous assertions,
all workers need to be mindful that they are taking a legal risk. As to assertions
intrinsic to their work, these will and should continue. However, it is more likely
that a defence will succeed if the information is true, accurate, balanced, necessary
to the purpose of the work, and divulged only to those who need it. In other words,
good human service practices can again intersect with the law to the beneft of the
practitioner and the service they provide.
Legal imperatives to disclose information
or permit access to it
Despite the general duty, confdentiality is not absolute in the human services, and
there are many requirements to disclose or report information, sometimes information
which may be considered confdential, which are permitted or compelled by law, and
sometimes codes of ethics.
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Informed consent
The most fundamental legal and ethical justifcation for releasing sensitive
information is when there is consent from the relevant party to do so. Consent
to disclosure is enshrined in APPs and it is consistent with ethical professional
principles that accentuate dignity and autonomy (for example, see AASW Code of
Ethics, section A.3). In the more general legal sense, informed consent validates
treatment, intervention, or professional action, and it is a defence to a legal action in
personal trespass or negligence that an individual consented to that action. The word
treatment appears here because most of the relevant cases about informed consent
in Australia have originated in the medical arena and must be extrapolated to the
human services.
In Rogers v Whitaker (1992) 175 CLR 479 a patient, Mrs Whitaker, lost her
sight after eye surgery. The High Court found that the doctor had breached his duty
of care by not disclosing to her sufcient relevant information before the operation—
that is, information about risks of treatment that would have been signifcant to her
given her particular circumstances. This and subsequent cases have prompted most
organisations to implement procedures for ensuring that clients have consented
to intervention and disclosure. Compliance with these procedures is essential in
medical treatment where bodily integrity is at stake. But it is equally applicable to
human service activity and the risks therein (see, for example, O’Brien-Malone and
Diamond 2006, Australian Psychological Society 2014). So there are legal as well
as ethical imperatives to ensure that clients know exactly what they are agreeing to.
Comprehensive informed consent procedures should ensure that:
• the client has full information about potential disclosure and about the
intervention procedure and its risks generally, and to them specifcally
• consent is both intervention- or activity-specifc and time-limited
• information is presented in a form that can be comprehended by the client, and
the client has opportunities to clarify it
• the client has comprehended the information
• the client has voluntarily consented to the activity, preferably in writing
• the worker records their actions in giving information, eliciting and answering
questions, and in obtaining consent.
The mechanical check-box or form-signing processes seen in some human service
organisations may not actually satisfy these consent procedures at law, nor in ethics.
Similarly, forms that require clients to consent to a general range of activities or
disclosures may provide little legal protection for the agency.
Most human service agencies and workers probably accept the need for them
to seek permission for their own clinical work with clients and for the release
of personal information, but they may be less attuned to the consent aspects of
advocacy work. However, workers engaged in advocacy work on behalf of others
have a particular responsibility to ensure that those others know the potential
positive and negative outcomes of that advocacy. Advocacy intervention might,
for example, delay a decision, or result in a fnancial cost or in closer scrutiny of
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the other’s situation. In order that the risks are fully understood, it is essential that
these possibilities are declared and explored before the advocacy action happens.
Ironically, given the prevailing rhetoric about the importance of client consent in the
human services, consent for research and evaluation purposes is often neglected in
practice. Projects and evaluations involving perusal of client records, for instance,
often go ahead in organisations without client consent, and this is both legally and
ethically questionable (for example, see AASW Code of Ethics 5.5.2.2 (d)).
The question of consent is obviously much more complicated when an individual’s
competence to consent is in doubt, they are particularly vulnerable in some other
way, or they are a minor. The distinction between disability and mental incapacity
is particularly vital. Many people with disabilities are perfectly competent to give
informed consent and they are treated in law like anyone else. Even if someone’s
consent capacity is in doubt, the law will emphasise respect for their human dignity,
and require the presumption of their legal competence to be rebutted before any
decisions are made on their behalf. The case of Re Marion (No 2) (1993) 17 Fam
LR 336 involved a question of consent to sterilisation for a person with intellectual
disability. It determined that people with disabilities are entitled to individual
inviolability (Jones and Basser Marks 2000, p. 152) like anyone else, and that
decisions about their treatment should be made on the basis of their individual
needs and characteristics rather than their disability per se. If the person is deemed
to be incompetent, agents such as parents and legal guardians may consent for
them. If there is no agent, court- or state-appointed advocates will be invoked. Adult
guardianship is addressed further in Chapter 11.
Putting flesh on the legal and ethical principles of consent is a matter of often
quite complex process, procedure, and practice issues. Professional judgment must
be exercised in deciding how information is given to clients to help them understand
what they are consenting to. Agency procedures and professional expertise will
determine how non-consensual or consensual release of information when others
are at risk is explained to clients before or after release of that information. These
necessary activities will challenge the communication and relationship building
skills of workers but are essential in ensuring transparent and respectful information
management processes.
Duty to report/warn/protect because of a
signifcant threat or in the public interest
Exceptions to confdentiality involving non-consensual release of information are
relevant where the public interest in confdentiality is balanced by a public interest
in disclosure for an equally important reason. These reasons often involve safety to
specifed people or the community in general. The US civil case of Tarasoff v Regents
of the University of California 526 P2d 553 (1974) and 551 P2d 334 (1976) is
a much-cited example of the duty to warn exception. The exception, if it applies,
may then become a defence to an action for breach of confdence. But does the
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exception apply in Australia? The situation is not entirely clear (McMahon 1992,
2006a, 2006b; McSherry 2001), although Kampf and colleagues (2009) argue that
Australian courts in recent decisions have shown a reluctance to impose a duty to
protect or warn in civil cases. However legislation, as will be seen soon, may protect
or even require reporting in Australia.
Certainly APP 6 (see also sections 16A and 16B of the Privacy Act 1988 (Cth))
allows for, among other things, unauthorised disclosure on enforcement grounds or
if required or authorised by a court. Many professional codes of ethics provide for
disclosure of personal information on threat or public safety grounds (for example,
see APS Code of Ethics clause A.5.2 (c)). There may also be limited protection for
disclosing under whistleblower legislation in some jurisdictions. The greater the
likelihood of serious harm, the greater the imperative to disclose, and risk assessment
is becoming an increasingly important element of human service work. McMahon
(1992, p. 16) provides four useful criteria for deciding to warn or inform without
consent, and as possible defences in a Tarasoff-type suit. These are:
• the victim is clearly identifed
• the plan to kill is specifc
• the client has the means to act out the threat
• steps to protect the victim are practicable.
A number of other overseas cases indicate how courts have attempted to balance
the public interest and confdentiality. The British case of W v Egdell [1990] 1 All
ER 835, and the Canadian case of Smith v Jones [1999] 1 SCR 455, both involved
psychiatrists passing on their reports about prisoners, and potentially breaching
confdentiality, when they were concerned about signifcant dangers posed by these
prisoners. The House of Lords confrmed the primacy of the public interest over
professional confdentiality, as did the Canadian Supreme Court. The majority ruling
in the Smith case can be used to extend McMahon’s four criteria above to include:
• the victim is in an identifable group (for example, prostitutes in the Smith case)
• the danger is imminent
• the risk is of death or serious bodily harm.
The debates about these possible legal risks are generally rendered redundant
by good practice procedures in which clients are fully informed at the beginning of
their contact with human service agencies about the limits of confdentiality and the
circumstances under which non-consensual disclosure might take place.
Where disclosure is reasonably necessary for
the enforcement of law
This exception to confdentiality may be the same as the public interest exception
above and similarly has not been fully developed in Australian law (McSherry
2004). In the case of R v Lowe (1997) 2 VR 465, the Court of Appeal of the
Supreme Court of Victoria confrmed the subordination of private confdence to
the broader public interest, by ruling evidence from psychotherapy sessions as
admissible in a murder trial.
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Where disclosure/reporting is authorised or
required by legislation
Increasingly human service organisations and workers must balance legislative
requirements to disclose and confdentiality. In many situations relevant to human
service work, legislation requires the reporting of certain information or activities.
Most familiar to human service workers will be legislation that requires reporting of
suspected child abuse and neglect, more of which will be said in Chapter 9. Following
institutional child abuse and internet child pornography exposures in recent years
the scope of these legislative requirements has expanded and the penalties for noncompliance have increased. For example s 327 of the Crimes Act 1958 (Vic) provides
for a penalty of three years imprisonment for any person in any jurisdiction who
having formed a reasonable belief that a sexual offence has been committed by an adult
against a child under 16 years in Victoria, fails to report it to the police. Section 49C
of the same Act sets a penalty of fve years imprisonment for the failure of persons in
authority in organisations to prevent risks of sexual offences against relevant children.
These sorts of provisions are predicted to apply in future in other areas relevant to
human service work. Clark and North (2007) argue that the law may in future expect
disclosure, for example by psychiatrists to carers, to prevent suicide or self-harm.
Some other examples of current legal requirements to disclose include:
• Corrections Act 1986 (Vic) s 90 places recording and reporting duties relevant to
security and good order on ofcers.
• Health Practitioner Regulation National Law Act 2009 (Qld) s141 requires a
health practitioner (including psychologists) to report to the Australian Health
Practitioner Agency their reasonable belief that another health practitioner
has engaged in notifable conduct (for example, practised while intoxicated or
engaged in sexual misconduct) and a student has an impairment that may place
the public at risk.
• Regulation 27 of the Firearms Regulations (2008) under the Firearms Act 1977
(SA) requires nurses, psychologists, social workers and professional counsellors
to report information received in their professional capacities about frearms
related threats to the safety of clients or others.
In some cases, legislation of this sort will contain indemnity clauses. For example,
s 237(3) of the Health Practitioner Regulation National Law Act states that a
notifcation under the Act does not constitute a breach of professional ethics or
standards and will not incur liability for defamation. Under s 29 of the Children
and Young Persons (Care and Protection) Act 1998 (NSW) a notifer is similarly
protected from a number of possible legal suits such as defamation, or breach of a
code of ethics.
Freedom of information (FOI) legislation
Each jurisdiction has legislation that allows citizens access to information about
government activities, for a fee and within specifed limits. Such legislation,
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unlike the privacy legislation, covers more than personal information, so under it,
citizens can seek access to departmental records. There is provision for indemnity
for disclosure under these types of Acts. It is worth noting that as with privacy
legislation, information is now seen by the law as being accessible to those with
rights, although these rights may be restricted by commercial-in-confdence obstacles
which characterise outsourcing of what were previously government functions. Thus
workers must be ever-mindful of the range of potential readers of their records,
clients and others. In addition, they will be increasingly involved in helping people
access, correct, make sense of, and come to terms with information in their records.
Other examples of legally mandated access
All Australian states and territories have legislation that gives some rights of information
access, and veto, to adoptees, birth parents, and adoptive parents. Similarly states and
territories all provide for the confdentiality, disclosure of information and keeping of
records relating to reproductive technology, sperm donors, and infertility treatment
within their relevant legislation. For example, in the Human Reproductive Technology
Act 1991 (WA) s 49 prohibits the disclosure of information except for some purposes
such as research and generally requires consent of the persons involved. New South
Wales manages the information in a central register and application for access to
it must be made under Part 3 of the Assisted Reproductive Technology Act 2007.
Provisions relating to disclosure of sensitive information typically have corresponding
requirements around the reasons for the disclosure, the use of the information,
and consent to that disclosure by the subject of the information, particularly in the
case of donors of reproductive material. Again the influence of the general principle
that people have a right to know about their personal information held by others is
increasingly evident in legislation. This rule may prevail even in situations where the
informant and information collector did not consider or assume later disclosure. For
example there are calls and plans for law reform to allow for donor children to have
access to information about their biological parents (for example, see Wise and Kovacs
2014). Again, the message to human service agencies and workers is that the law is
increasingly sensitive to access rights, records have very long lives, and community
attitudes to what material should remain confdential can change over time.
Privacy legislation
The access principles have been covered earlier in this chapter.
MYTHS AND REALITIES
Myth: Parents of 14- and 15-year-old clients have a right to be provided with information
concerning their children.
Reality: This assertion is too simplistic. A correct response to the assertion will depend on
a combination of factors including the maturity of the young person, their understanding,
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their capacity to make decisions, their independence, the sensitivity of the information involved, and who, if anyone, is paying any fees. It is essential that agencies dealing with
young people have clear policies and procedures about others’ access to their information and that their clients are informed about these. These policies must show respect for
the rights to privacy of the young people, even if they are legally minors.
Absence of legal professional privilege
Many human service workers are surprised that their clients, unlike those of lawyers, do
not have a common law right of legal professional privilege. This means that information
about their work with their clients is not generally protected from court demands.
Workers and their records can be subpoenaed by courts, unless they are covered
by legislative provision of the kind mentioned in the protection section above.
Without such a protection, workers must appear or tender the requested information
to avoid being in contempt of court. The question of how to approach a subpoena
will be canvassed in the next chapter. Again this underscores that a worker’s records
always have a range of potential future and perhaps unexpected audiences.
A legal duty to report crimes?
There is no general legal duty requiring human service workers to report intended or
past crimes that they receive information about.
As mentioned previously, there are some specifc legislative mandated reporting
requirements about some criminal activities—for example, child sexual abuse. As
to other serious crimes such as rape and murder, the picture is rather one of moral,
ethical, and public interest considerations. The old criminal offence of misprision
of a felony, which once required anyone to report serious crimes that they found
out about, seldom now exists. In some states—for example, under s 316 of the
Crimes Act 1900 (NSW)—it is an offence to conceal information about a serious
indictable offence unless that information is gained in the course of professional
work as prescribed in the regulations. The regulations include social workers and
counsellors. However, while not reporting, and impeding police investigations are two
different things, they can merge in practice. Workers who actively refuse to report
what they know about serious crimes may fnd themselves charged under state and
territory law provisions about obstructing police investigations. They could also, as
previously discussed, face a civil suit if their knowledge concerns an intended and
identifable crime and victim. The difference between legal protection for disclosure
of information and mandating disclosure is important for workers to appreciate. So,
for example, a worker may be able to claim a legal protection for releasing confdential
information. However, there may be no legal duty to report that information.
To record or not?
Given all these problems about access to records and limits on confdentiality, some
sections of the human services argue that it is best to record nothing or very little.
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However failure to record is both unethical and legally risky, as good records are the
basis of planned, accountable and transparent assessment and intervention (Symons
2002; Reamer 2005; Swain 2009). Failure to record can cause signifcant problems
for clients and legal liability for workers and organisations even when that failure
was deliberate and designed to protect clients. Good human service intentions can
produce undesirable outcomes.
A good illustration of good human service intentions producing an undesirable
outcome is provided by the Canadian case of R v Carosella [1997] 1 SCR 80. In
that case a woman had attended a sexual assault clinic after an assault and been
interviewed by a social worker who made notes. The woman later reported the
assault to the police and a man was charged. The assault centre, having previously
experienced difculty with court demands for records, had developed a policy
about making notes which were vague and abbreviated, and which were destroyed
when legal action was on foot. On the basis of this policy, the woman’s notes were
shredded. The criminal court trying the man ordered the production of the woman’s
notes but this was not possible. The majority in the Canadian Supreme Court found
that the charged man could not mount a full and fair defence if he could not cross
examine the woman about her original statements in the sexual assault centre. The
stay of proceedings against him thus stood. The dilemma faced by the agency and
workers in this Canadian case has been removed in those Australian jurisdictions
that do provide some protection for the records of sexual assault victims.
The law will look unkindly on the absence of records and any worker who has
avoided keeping them could be subpoenaed to give oral evidence anyhow. It is better
and wiser practice to communicate within declared limits of confdentiality and to
concentrate on relevance and rationale in documenting sensitive situations.
Electronic and digital records
and communications
Most human service activities now are electronically recorded or monitored in
some way and most service organisations operate electronic client data bases.
Digital communications with clients are increasingly common, but can be tricky
as boundaries between professional and personal interaction may be blurred (for
example, see Hardcastle 2012 on SMS messages). Electronic systems pose many
challenges, not least for workers, the tensions between professional imperatives and
constraints on professional discretion, and between interpersonal and ‘informational’
time demands (for example, see Burton and van den Broek 2006, 2009; Terry, 2008;
Parton 2009; Shaw and Clayden 2010; Gamble and Morris 2014). Despite these
digital world challenges, all of the material covered in this chapter is as relevant to
electronic systems as it is to hard copy ones and thus additional responsibilities fall
on organisations to ensure that they have in place systems which are secure and
which do permit adequate risk monitoring.
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Whistleblowing
This topic warrants special attention because it concerns extraordinary dilemmas
in information management. Whistleblowing entails exposing in the public interest
organisational corruption, misconduct, fraud, or poor administration. It is relevant
where there is endemic or systemic wrongdoing in an agency, where there does not
appear to be any internal management will to act, and where the problems are of
public concern.
Whistleblowing is becoming an increasingly important and troubling issue in all
work arenas and is well illustrated in the Queensland hospital deaths case (Rawlins
2009) and, more recently, by staff speaking publically about conditions in asylum
seeker detention centres on Christmas Island and Nauru (Zajac 2015). De Maria
(1996, p. 17) describes whistleblowing as an important form of dissent for social
workers and refers to it as the ‘ultimate public service’.
In the following examples, workers are faced with very difcult choices about
information that comes to their attention:
• Staff members are systematically stealing and selling agency drugs.
• Staff workloads are so high that serious errors of judgment are occurring.
• Agency funds are consistently used to purchase nonessential, expensive IT
equipment.
• A particular client group is routinely and actively under-serviced or refused
service.
• Staff are regularly bullied, threatened, and intimidated by a group of managers.
Whistleblowing situations raise moral, ethical, legal, and practical quandaries for
workers in large and often conflicting measure. Given the very nature of organisational
corruption, it is often difcult or impossible to report problems within the
organisation itself. Decision making in these circumstances is a notoriously difcult
weighing and balancing exercise (Blonder 1996; Martin 2000), and whistleblowing
is only one of many possible responses. The laws and legal frameworks under which
whistleblowers may seek protection from legal threats and other forms of reprisal
are variable in shape, coverage and effectiveness (Latimer and Brown 2008; Brown
2013). Ultimately, faced with scenarios like those above, individuals must make hard
personal decisions.
These things said, what are the major legal considerations?
• ‘There is no general right or legal duty to disclose wrongdoing’ (Vernon 1998,
p. 232), thus afrming the necessity for personal decision making.
• There are limited protections and indemnities from reprisals for whistleblowing
under whistleblowing legislation in both the private and public sectors. To be
protected, the informing behaviour, the organisation subject to whistleblowing,
the information, and the informing person must come within the scope of the
relevant legislation. Protective schemas generally require that the reporting be
made in the public interest, to appropriate internal or statutory investigative
bodies, not the media. For example, Commonwealth employees have some
protections under the Public Interest Disclosure Act 2013 (Cth), and those
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who report breaches of the Corporations Act 2001 (Cth), under more recent
amendments to that Act, may be covered. At state and territory level, the Public
Interest Disclosure Act 2010 (Qld), the Protected Disclosure Act 2012 (Vic) and
the Public Interest Disclosures Act 1994 (NSW) are three examples of legislation
aimed to facilitate disclosures in the public interest and to protect informants.
• Legal obstacles to whistleblowing are inherent in many of the imperatives for
secrecy covered earlier in this chapter. There may be statutory or other legal
barriers to divulging information about agencies to outsiders. Despite recent
developments in legislation to protect whistleblowers, there are parallel and
contrary moves (often driven by state security arguments) to prevent and
punish whistleblowers. For example under the secrecy provisions in s 42
of the Australian Border Force Act 2015 (Cth) those working for or with the
Department of Immigration and Border Protection (for example, consultants and
contractors) can face criminal charges and imprisonment for up to two years if
they reveal information about immigration detention centres to anyone other
than a number of specifed bodies (for example, Commonwealth agencies, police,
coroners). Newhouse and Barnes (2015) argue that this legislation may make
it a crime for example for a social worker to discuss an ethical issue about their
work on Manus Island with a mentor, or for a teacher to tell a prospective new
employer that the school on Manus Island is closing. This legislation poses very
difcult ethical choices for those providing services in detention centres and the
Public Interest Disclosure Act 2013 (Cth) provides very limited if any protections
for disclosures (for example, see Birchall 2015; Newhouse and Barns 2015).
In the absence of legislation protecting whistleblowers, or even where it exists,
the way reporting of wrong practice is responded to and investigated will largely be
a matter of agency policy and procedures. If the agency is already compromised at
high levels, there are inherent difculties with internal processes. In any action the
whistleblower may be a lone individual lined up against the might of very large and
powerful opponents. The position of the whistleblower is never easy and their own
values (see Figure 3.1) are likely to determine their actions, rather than external
imperatives from, say, the law or their agency.
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Key points for practice
• All information obtained and handled through human service work is attended by
legal and ethical obligations and implications.
• Categorical responses to questions about information management are seldom
useful. For most situations, including those involving confdentiality, there are
qualifcations and these must be made very clear to clients in particular.
• It is essential that agencies promulgate to staff and clients their policies and
procedures for collecting, recording, storing, accessing, and amending information,
and that these policies are consistent with both federal and relevant state and
territory privacy law and associated schemes.
• The extent to which these policies have substance and offer specifc guidance to
workers will depend largely on how clear the agency is about its mandate, purpose,
and approach to service delivery.
• It is essential that workers are familiar with agency policies and procedures
concerning information management and comply with them.
• Records should always be written and stored with the possibility of later legal
scrutiny in mind.
• Informed consent is vital in all human service work. It has particular relevance for
the release of sensitive personal information. Consent to disclosure must be voluntary
and based on a full and detailed understanding of what is to be disclosed, to whom,
for what purpose and in what time frame.
• Always question the source and authority of unreferenced assertions about how
information should and can be handled. Worker and client interests may both be
served by knowing what information imperatives really exist, how they can be
utilised, and what risks are associated with non-compliance.
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Some useful websites
Privacy
http://dpc.sa.gov.au/sites/default/
fles/pubimages/Circulars/PC012_
Privacy_0.pdf
http://webarchive.nla.gov.au/
gov/20110601172857/http://www.
oaic.gov.au/publications/case_notes.
html
www.act.gov.au/privacy
www.archives.sa.gov.au/content/
privacy-law-sa
www.ccarafmi.org.au/images/
privacynsw_brochure2005.pdf
www.cpdp.vic.gov.au
www.fndlaw.com.au/articles/4556/
health-records-confdentiality-privacyand-access.aspx
www.ipc.nsw.gov.au
www.legalaid.wa.gov.au/
InformationAboutTheLaw/
treatment/Pages/
Privacyandfreedomofnformation.aspx
www.oaic.gov.au
www.oic.qld.gov.au
www.ombudsman.tas.gov.au/making_a_
complaint/your_privacy2
www.privacy.gov.au
www.privacy.nt.gov.au
www.privacy.org.au
www.sa.gov.au/topics/citizens-and-yourrights/personal-information/privacy-ofyour-personal-information
Whistleblowing
http://transparency.org.au www.whistleblowers.org.au
References
Ames, N. (1999). ‘Social work
recording: A new look at an old issue.’
Journal of Social Work Education
35(2): 227–37.
Australian Association of Social Workers
(AASW) (2010). ‘Code of Ethics.’
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