Non-disclosure of documents in limited circumstances

Non-disclosure of documents in limited circumstances

If the service proposes to withhold certain information or documents from a person, they can only do so on very limited grounds and with the approval of the tribunal.

If the authorised psychiatrist believes that disclosure of certain information on the person’s clinical file may cause serious harm to that person or to someone else, they may apply to the tribunal for a determination that disclosure of that particular information be denied (s. 191(2)–(4)). That application should be sent to the tribunal at least two business days before the hearing on the prescribed form.

Practice tip

Serious harm is a very high threshold. It represents significantly narrower grounds for non-disclosure than in the former Act (which provided additional grounds of confidentiality and unreasonable disclosure of personal information).

Difference between restricting informat​ion under the Mental Health Act 2014 and the Freedom of Information Act 1982

The grounds to restrict a person’s access to information under the Mental Health Act and the Freedom of Information Act (FOI Act) are different. Under the FOI Act, access can be restricted if access would cause harm, or information was provided in confidence and access would reasonably be likely to impair the ability of the treating service to obtain similar information in future. The treating service cannot restrict access under the FOI Act if it would be available under the Mental Health Act.

It may be useful to note s. 6A of the FOI Act which states that the FOI Act does not affect the operation of any other law that enables a person to access a document. This means the Mental Health Act overrules the FOI Act whenever the two laws conflict.

The treating service may also attempt to make it a requirement for you to make a written request under the FOI Act before accessing information.

See Getting access to information and the clinical file in practice for more information.

Preliminary ‘non-disclosure’ hearing

The tribunal will normally decide whether to grant the application by conducting a brief preliminary hearing in the absence of the person themselves (but with the lawyer and service representative present). The lawyer may also have to give an undertaking not to disclose the source or details of the information to their client.

The tribunal will often ask if the information is something that the service needs to rely on in making their case. If not, the tribunal may also decide that the information itself is not relevant to the hearing before it. In this case the authorised psychiatrist will often withdraw the application and the tribunal will proceed with the hearing without either it or the person considering the withdrawn information in the file.

If the tribunal determines the threshold is met and grants the application and denies disclosure to the person, the tribunal has discretion whether or not it will proceed with the substantive hearing and whether it will look at that information in the hearing (s. 191(3)).

If it decides it would not cause serious harm, then it can order the mental health service give the person access to the information. In that case, it also has the power to adjourn the hearing for up to five business days and extend the order accordingly if necessary (s. 191(4)).

Practice tips

  • Pending determination of any non-disclosure application by the tribunal, the service will usually redact the particular information from the entries in the file, but must provide access to the remaining parts of the file.
  • Advise your client if an application for non-disclosure has been made and the risk they may not get to see that information. Obtain your clients instructions about opposing the application or otherwise, and making submissions on the tribunal’s exercise of discretion consistently with its procedural fairness obligations.

Submissions on breach of procedural fairness

  • Without the opportunity to rebut any allegations within or respond to information that has been withheld from your client under s. 191(3), it would arguably breach the right to procedural fairness and the fair hearing right under s. 24 of the Charter if the tribunal decided to exercise its discretion to look at that information. It is arguable that laws relating to compulsory treatment should be strictly interpreted in favour of the person affected by them, due to their restriction of personal freedom (for example, Wilson v Mental Health Review Board [2000] VSC 404; MM v Mental Health Review Board (1999) WASC 1005).
  • If a person is unable to have access to information that directly affects their interests (such as allegations of harm) and which is then relied upon by the tribunal, then there is a breach of procedural fairness. This point was considered by a Supreme Court case in Western Australia, which considered a decision of the mental health review board – in that case the board’s decision was quashed (EO v Mental Health Review Board [2000] WASC 203).

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