Information Sharing, Confidentiality & Consent

There are some complexities with confidentiality and information sharing in relation to forensic clients and it is important to be mindful of these and to be able to be clear with clients about the limits to confidentiality within a forensic context. If in doubt about any of these issues, seek guidance from your supervisor or manager.

Information Sharing and Limits to Confidentiality

It is important that clients are able to feel that the personal information that they share in counselling sessions remains confidential as much as possible, to help to build an open and trusting dialogue. However, there are limits to confidentiality when working with clients and particularly with forensic clients, which need to be clearly articulated and understood at the commencement of treatment.

The circumstances in which information may be shared by an AOD worker without the client’s specific consent include:

Where there is a serious risk of harm to self or others;
Where the worker has formed a “reasonable belief” that a child is experiencing or at risk of abuse;
In response to an ISE request (see information below) for the purpose of establishing, assessing or managing family violence risk, or to promote the wellbeing or safety of a child;
Where client information is subject to a Court subpoena or Coroner’s Inquest (see more below);
Where information is required to be shared with CCS – such as:
Attendance, engagement and participation in treatment;
Risk issues
Significant substance use related to offending or increased risk
Any substance use for people on parole
Family violence concerns
Death or overdose

It is recommended that in most situations the client is advised that information is to be shared and the reason for this decision (unless it is assessed that such advice may pose an increased risk of harm to client or others).

In other cases, information may be shared with others with the permission of the client where it is considered to be beneficial to the treatment outcomes of the client. This is at the heart of the collaborative practice approach which seeks to enhance treatment outcome as well as safety, through the sharing of information between service providers, other agencies, CCS and police. In these instances, it is advisable to obtain a signed Consent to Exchange Information form from the client, which details the agencies between which information will be shared.

If you are unsure if something meets the requirements for reporting or have any questions in regards to confidentiality, seek supervision or consultation with a senior staff member.

When information sharing is required, be open and transparent with your client in regards to this. If you have made clients aware of these requirements when you collected consent, this process should be relatively straight forward. You may find it helpful to explain why this information is to be shared and how it may benefit the client (e.g. so that CCS can assist with issues around stability).

Informed Consent to Treatment

It is essential that you discuss confidentiality – and the limits to it – prior to commencing treatment, and obtain a signed consent form with every client.

Four elements need to be present for consent to be given: consent must be voluntary, the client must be adequately informed, it should be written (unless this is not possible), and it should be related to specific situations and people.

A consent form should include information such as:

Name of the client and clinician/worker
Treatment information and possible risks*
How information collected will be used
Where information will be stored
Who will have access to stored information
Limitations of confidentiality
Date
Signature of client

(* May vary depending on agency)

Consent should always be sought in line with your company/agency policies and procedures.

When collecting consent, check in with your client’s understanding of how information sharing works. Don’t assume the client can read the consent form, you may need to read it to them.

Give examples of what types of things will be shared and with whom (e.g. significant drug use related to offending, risk to others etc.) and what won’t be shared (e.g. family history, history of trauma etc). Spend time answering any questions your client may have in regards to this. Further, explain what reports will be written, what they can be used for and who they will be shared with (e.g. non-completion and completion reports to be shared with CCS and the type of information they contain).

Capacity to give consent

Consider your clients’ capacity to give consent. Factors that prevent consent from being given include:

limited capacity for decision making (e.g. dementia, intellectual impairment, acquired brain injury),
temporary impairment (e.g. intoxication, psychosis, severe pain), lost consciousness, age (youth clients)

Consent and Young Clients

For young people, there is no specific legislation that fixes the age at which a young person can consent to treatment. However, it is generally understood that young people aged 16 and above have the capacity to consent to treatment. It is accepted that young people can consent to treatment if they have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. This is referred to as “Gillick competence” and has been accepted into Australian common law.

Capacity to consent should take into account the young person’s capacity to:

comprehend the information being provided;
remember the information;
use/weigh up the information in their decision-making process; and
clearly communicate their decision to the worker.

If it is determined that the young person does not have the capacity to consent, the worker should contact the young person’s parent/guardian to provide consent on their behalf.

Court Subpoenas

In your discussion about confidentiality with the client (and on your consent form), be sure to mention the risk of subpoena. This is an order issued by the court and can take the form of having to produce documents (therapy notes, client information forms, psychological tests, the entire client file) or having to give oral evidence in court. Subpoenas can be questioned if the information sought is not relevant to the issues presented before the court. Seek support if in doubt about a subpoena.

Coroners’ Inquests

Coroners’ Inquests occur if there is a death in custody or if there is a death soon after a release from custody. They can also occur for clients under the care of DHHS or engaged in funded treatment. In these instances, any information from the client file can be requested. Having complete and thorough records allows information to be provided in a timely manner. For example, if harm reduction information has been provided to the client, be sure to document this in your notes. Similarly, any actions you have taken to minimise risk should be clearly noted.

Failure to Disclose Legislation (child sexual abuse)

Failure to Disclose Legislation was passed in Victoria in October 2014. All adults now have a clear duty to report child sexual abuse to police if they have formed a “reasonable belief” that a sexual offence has been committed by an adult against a child under 16. A “reasonable belief” is defined as being if a reasonable person in the same position would have formed the same belief on the same grounds. It is a criminal offence not to report this.

There are some exceptions to this – a person will not be guilty of the offence if they have a reasonable excuse for not disclosing the information such as:

fear for safety – for example if the child’s mother decides not to disclose information about her partner sexually abusing her child due to fear of violence to herself or the child – and you assess that this fear is reasonable;
where the information has already been disclosed to police or child protection authorities;
a victim requests confidentiality, where they are over the age of 16, and judged to have the capacity to make this decision.

Family Violence Info Sharing Scheme (FVIS)

The Family Violence Information Sharing Scheme was established in response to a Recommendation from Royal Commission into Family Violence (2016) in order to share information that will assist in reducing risks and harms associated with Family Violence (FV). From September 2018, AOD agencies are prescribed under legislation as an Information Sharing Entity (ISE).

ISEs can request relevant info from other ISEs for the purpose of establishing and assessing FV risk or managing risk. The ISE requesting the information must outline the reason for the request and how the info will be used to assess or manage risk.

The ISE must provide a response to the request, and although they are not mandated to provide the requested information, there is an obligation to share information where it is considered appropriate.

A decision not to share information may be made where it is considered that sharing information might endanger a person, prejudice legal proceedings or a police investigation, or contravene a court order.

In some cases consent is required prior to sharing information about an individual, in others it is not required, as outlined below:

Information about an adult victim/survivor: consent required from the adult victim/survivor
Child victim/survivor: no consent required from any person to share
Perpetrator: no consent required from perpetrator to share
Alleged perpetrator: no consent required from the alleged perpetrator to establish or assess risk of committing violence
Third party: consent required from third party to share unless serious risk is present or the info relates to risk to a child victim survivor (no consent required).

Child Information Sharing Scheme (CIS)

The Child Information Sharing Scheme (CIS) was also established in response to a Recommendation from Royal Commission into Family Violence (2016).

All state funded AOD services are now prescribed under the Child Information Sharing Scheme (CIS)
Organizations prescribed under the CIS can request information from another organization under the CIS with the purpose of keeping children and young people (0-18 years) safe
Allows people working with young people and their families to share information to promote young children’s wellbeing and safety
Consent is not required. Should take into account the views of the child or relevant family member if reasonable to do so

If you are unsure about how to respond to a CIS request, seek guidance from your supervisor. There are some general tips below based on recommendations from the Victorian Commissioner for Privacy and Data Protection.

For both schemes it can be helpful if there is a company-wide approach to responding to requests.

Responding to an Information Request under the FVIS or CIS

Understand the authorising environment- ensure that clients are aware of information sharing circumstances and limitations of consent in relation to information sharing
When a request is received- be sure to collect all key information. For example, who is requesting the information and where are they from, what information is being requested, why is the information being requested, what is the authorising environment of request and does it meet the relevant threshold or purposes for sharing information? For example, how will sharing the information protect the wellbeing of a child?
Undertake a risk assessment- is the information sharing necessary, proportionate, timely and secure? What are the risks related to not sharing the information? Are there risks to sharing this information?
Seek further advice from a team leader/ line manage or legal team.
If you decide to share information, follow appropriate documentation and record keeping requirements. If this is a regular occurrence, use templates where possible.

References/Further Reading:

For more information refer to the supporting documentation in the Key Reference Documents section of this website including:

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