Thursday, April 28, 2011

Mental health care: Are our rights to privacy being eroded?

An opinion piece published in today's edition of The Chronicle Herald:
By Aileen McGinty

One in five Canadians are likely to experience mental illness within their lifetime. Statistically, this means that about 80,000 people in the Halifax area could be affected by new guidelines on disclosure of information being developed by Capital District Health Authority’s Mental Health Program.

The Mental Health Program was advised, rightly or wrongly, last year during a visit by the Meriden Programme from England that collaborative mental health care in Nova Scotia is restricted more than in most other places in the world by the emphasis on confidentiality.

Capital Health’s response to this is to develop new disclosure guidelines together with "champions of disclosure" in their various teams. What the Mental Health Program does not appear to appreciate is that you cannot get around existing legislation simply by introducing new policy. If legislation is required to be changed, there is an appropriate process to be followed. The danger with the direction taken by Capital Health is that the new policies may not be in compliance with legislation, leaving the organization open to challenge.

The draft disclosure guidelines prioritize the rights of family members of those with mental illness over the rights of the individuals living with mental illness. ("Family" is defined as those whom the patient identifies as supportive.) Families play an extremely important role in the lives of many of those with mental illness; however, the rights, dignity and respect owed to the individuals concerned must take priority.

These rights cannot be ignored as they are enshrined in the UN Convention of the Rights of Persons with Disabilities. On a provincial level, the Freedom of Information and Protection of Privacy Act provides that all public bodies are obliged to ensure the protection of an individual’s personal information.

In essence, the draft guidelines as written advocate manipulation and obfuscation of people who are vulnerable and likely to be in distress. In any discussion, clarity is paramount, but especially so when that discussion involves someone who may be distressed, confused or anxious.

These draft guidelines advise professionals not to ask someone whether they want their personal information kept confidential, but rather assume consent and ask only which information can be disclosed and to whom. Many people with mental illness as well as human rights professionals, both in Nova Scotia and other provinces, are finding this extremely disturbing. It is essential to inform someone that they have a right to keep their personal information confidential.

It is unlikely that any other health-care information would be treated with such a cavalier attitude and it may be possible that CHDA Mental Health Program could be setting itself up for complaints of discrimination on this basis.

Collaborative care is an important factor in the treatment of any illness. I am a great supporter of collaborative care generally, and am presenting on this very topic at the 12th Canadian Collaborative Mental Health Care Conference to be held in Halifax in June this year. However, research on collaborative care is quite specific about which particular circumstances lead to improved patient outcomes. It is simplistic to state (as in the draft guidelines) that "research shows that good supports improve patient outcomes," especially without referencing that statement.

My aim in highlighting this issue is not to be dismissive of collaborative care. My concern is to ensure that the individual’s right to privacy of personal information is not eroded.

The consultation period for this document was very short and the deadline for comments has passed. However, given the importance of this matter to so many people, I am sure that CDHA Mental Health Program would still be open to listening to the views of the public and other relevant bodies before completing the final document.

Aileen McGinty is a member of the Mental Health and Law Advisory Committee of the Mental Health Commission of Canada.

Also see:

Personal Directives in Nova Scotia

Personal Directives Act

Personal Directives Regulations

Personal Health Information Act (not proclaimed in force)

Carers and confidentiality in mental health - The Royal College of Psychiatrists (2010)

Rethink Policy Statement 27: Confidentiality and information sharing

SDO briefing paper – Information Sharing

Confidentiality and Information Sharing Reference List

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