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Social Work and the Law Newsletter

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Winter Edition

  • The Risk of Self-Harm – Where does the legal duty lie?

    Susan Accary, Associate Lawyer, Motor Vehicle Accidents Practice, Victoria

    Introduction

    Our Social Work team has noticed some recent media attention on the issue of voluntary euthanasia and the role of medical staff in assisting or not preventing a person’s hastened death.  We asked Susan Accary, a lawyer in our Victorian Personal Injury Practice, if a client expresses suicidal ideation or intent to their social worker, what are the social worker’s legal obligations to report this and seek medical intervention for the client? Susan has provided a summary of the law and the application of that law when a client plans suicide, and the legal duty to disclose that confidential information to other parties.

    Confidentiality and Disclosure, Ethical Considerations

    As a starting point, the Australian Association of Social Workers’ Code of Ethics (2010) provides important guidance on privacy, confidentiality and disclosure concerning risk of harm.

    The Code of Ethics stipulates in 5.2.4 E) that:

    Social workers will only reveal confidential information provided it is permitted by law and if by revealing information to relevant third parties an actual, identifiable risk of harm to a specific person or persons can be prevented.

    Further in 5.2.4 F), The Code of Ethics requires that:

    Before taking action to disclose clients’ confidences without consent, the level of perceived risk will be carefully assessed, preferably in consultation with other professionals, including referring professionals and with reference to relevant policy and law. Clients will be notified when disclosure without consent is intended or has occurred, unless this is contraindicated by issues of potential harm.

    Obviously, whilst the ethical obligation to disclose when someone is at serious risk of harm seems straightforward, what occurs in practice with clients can be complex and ethically challenging. As a result, it is interesting to analyse two legal decisions regarding disclosure of risk of self-harm and the conclusions reached.

    Case Study 1 – Nitschke v Medical Board of Australia [2014]

    Dr Phillip Nitschke was a registered medical practitioner and is a known advocate for voluntary euthanasia. Dr Nitschke met Mr Nigel Brayley, a 45 year old who was not terminally ill, at a workshop in Western Australia in February 2014. Dr Nitschke was informed by Mr Brayley on the day of the workshop that Mr Brayley was interested in access to “means of a peaceful and reliable death as a future contingency.” On 15 and 16 April 2014, Dr Nitschke and Mr Brayley corresponded via email. During their email correspondence, Mr Brayley articulated that he was planning voluntary euthanasia. On 2 May 2014, Mr Brayley died after consuming Nembutal.

    As a result of his contact with Mr Brayley and his failure to respond to Mr Brayley’s stated intention to suicide, Dr Nitschke’s registration as a medical practitioner was suspended, firstly by the Medical Board of Australia and then on appeal, his suspension was maintained by the Northern Territory Health Professional Review Tribunal.

    It is important to note that the Health Professional Review Tribunal accepted that Dr Nitschke was not in a doctor/patient relationship with Mr Brayley. Rather, the Review Tribunal focused on the breach of Dr Nitschke concerning the ’Good Medical Practice Code of Conduct.’  The Tribunal held that the medical profession has a responsibility to protect and promote the health of individuals and the community. The information Dr Nitschke provided to Mr Brayley via email had a medical aspect to it, and, therefore, the Tribunal stated that there was a sufficient connection to Dr Nitschke’s profession. The Tribunal noted that there is a serious risk to individuals by reason of the conduct of Dr Nitschke by not reporting Mr Brayley’s risk of suicide.

    Whilst the Tribunal’s decision, generally speaking, can be interpreted that medical professionals have a duty to report and disclose self-harm, how far that duty widens to the public in terms of preventing self-harm was discussed in the High Court case between Victoria Police and widow, Tania Kirkland-Veenstra. 

    Case Study 2 - David Stuart & Anor and Tania Kirkland-Veenstra & Anor [2009] HCA

    The facts of the case involve two Victorian Police Officers who, whilst on duty, came across Mr Veenstra on 22 August 1999, at about 5.40am, when he was in his vehicle in a car park on the Mornington Peninsula with a hose leading from the exhaust pipe to the interior of his vehicle. Upon being questioned, it was ascertained that Mr Veenstra was not going to proceed to undertake self-harm and was going home to talk to his wife. He declined the officers’ offers of assistance. He removed the hose from the exhaust. The officers let him leave from the car park. Tragically, later that morning, Mr Veenstra committed suicide at his home. Mrs Kirkland-Veenstra, Mr Veenstra’s widow, alleged that the officers had failed to apprehend her husband under the Mental Health Act 1986 in Victoria. It was held by the High Court, that the officers had considered and reasonable opinions that Mr Veenstra was not going to commit suicide and, therefore, there was no power to apprehend him under the relevant law.

    Conclusion

    It is highly challenging to determine whether or not to breach confidentiality with a client in order to prevent harm. The obligations of a social worker, however, are clear, that if there is a real risk that a client may self-harm, the breaching of confidentiality may be required for client safety and the safety of others.

    In light of the complex ethical, professional and legal obligations that arise in this context it is recommended that specific professional and/or legal advice is sought on a case by case basis.

  • Clients who lend to Family and Friends

    Michael Harris, Associate Lawyer, Commercial and Project Litigation Claims, Victoria

    As social workers we often encounter clients who are vulnerable, and especially so if they receive a significant amount of money and have friends or family asking them for a loan. Clients with capacity have the ability to manage their own finances and can, of course, choose to lend money to help out in a time of need. This will no doubt win them gratitude in the short term, however, it can also cause relationship rifts that last forever. While clients may feel they have a long and trusting relationship with their friend or family member, there are a number of important things clients should consider in order to reduce the risks of non-repayment. If your client plans to proceed with the loan, the Golden Rule when lending money to family or friends is ‘always have a signed and dated written loan agreement’.

    Loan versus Gift

    Giving a person money can be either a loan or a gift. A loan has to be repaid; a gift does not.

    In a client’s eagerness to help out a desperate friend or relative, they may give them money without being absolutely clear that it is a loan. The conversation can go something like “No, no. You take the money. We’ll work something out later”.

    When the time comes to pay the money back, borrowers can conveniently forget conversations about repaying money loaned to them. Having a loan agreement in writing can refresh a borrower’s memory, and provide evidence that the money was not given as a gift.

    Recovering the money

    An agreement to advance money as a loan is a contract between the lender and the borrower. A contract made orally is just as binding as a contract in writing. It can be difficult, however, to prove the existence of an oral contract. It is likely to be your word against the borrower’s whether the money was a loan or a gift. If a borrower is genuine, they should not have any objection to documenting a loan. If a legal remedy is required, a written agreement signed by the parties will assist the Court in deciding that the money was a loan.

    What should be in a loan agreement?

    A written loan agreement does not have to be a complicated document. It just has to clearly set out the obligations of the parties, particularly the borrower’s obligation to repay the loan. A simple written loan agreement can contain the following terms.

    1. The amount of the loan (the principal).
    2. Interest (if to be charged, the rate and how to be paid).
    3. The term of the loan (when the loan is to be repaid).
    4. How the loan is to be repaid (lump sum, instalments).
    5. Method of repayment (cash, direct credit, bank cheque).
    6. Security for the lender (if the loan is to buy personal property, the lender may be able register an interest on the Australian Government Personal Property Security Register).

    Once completed

    Once the document is completed, all parties to the loan should sign the agreement. It can be helpful for this to be witnessed by a person who does not have an interest in the loan. All parties should then receive a copy of the loan document and the person giving the loan should keep this safe for future reference.

    If a loan has not been repaid in accordance with the loan agreement, in the first instance the person giving the loan should speak with the borrower directly about the issue, referring to the loan agreement. If the issue cannot be resolved, the person giving the loan should seek expert legal advice, and the matter may be able to be resolved in the local court with cost orders made.

  • Working Remotely with Clients

    Olga Gountras, National Manager of Social Work Services

    Many of our clients live in rural and remote areas. As we provide state-wide, and at times interstate services, to clients, the majority of our work is by telephone. This has proved to be effective and efficient to address practical issues, provide counselling and mobilise mental health crisis services.

    Recently a client was referred to our Social Work Service because their application for a Centrelink payment had been rejected. This client lived in rural Australia. As is our practice, Olga rang the client to clarify her issues of concern through an assessment process. The client was distressed because she had rent and utility bills due and no money for food. As is often the case, our clients contact their lawyers when they have reached a point of crisis as they do not know where else to turn.

    The client was unclear why the Centrelink application had been rejected so Olga suggested a conference call to Centrelink to clarify this. After a few unsuccessful attempts to speak to a Centrelink officer who could provide this information (there appeared to be a problem with the phone system), Olga sent an email to the local Centrelink social workers on our database requesting assistance. Although the referral had only been received two days before the client’s financial situation was desperate. 

    One of the Centrelink social workers responded to the email and could see the log of attempted phone calls on their system. She was able to explain the reason for the rejection. Centrelink required a letter from the employer confirming the client still had a job and also confirming there were no further leave entitlements to be paid. The client could not afford to put petrol in their car to take these documents to Centrelink. The Centrelink social worker said that, if the information was emailed to her, she could log it with a note to the relevant team to process the claim and to do so as a priority.

    The client walked to the post office to fax the document regarding leave entitlements to Olga as they did not have a computer. The client said that they had worked for a small business and was afraid of their manager.  The client felt unable to contact her and had little faith that the manager would provide the letter confirming their employment. The client requested that Olga call the manager for them. Olga made a conference call so that the client could listen in and provide consent for the release of information if requested. The manager agreed to write the letter and, to the client’s surprise, emailed the letter to Olga the same day. These documents were emailed on to the Centrelink social worker.

     Later that day the client rang Olga again to say they had received a letter from Centrelink requesting a rent certificate be completed by the real estate agent. The client said they had already done one some weeks before and had left it with the agent to post in. A conference call was made to the real estate agent and a request made that they complete a new certificate. Again, the client went to the post office and faxed the blank certificate to Olga. Olga was able to email this to the agent who completed and emailed it back and this was also forwarded on to the Centrelink social worker.

    Olga also contacted a local agency who agreed to deliver a food parcel to the client while awaiting processing of their application.  Over the following week anxious phone calls to Olga ensued from the client and reassurance and support were provided. Olga also sent text messages to keep them updated. The client received payment and back payment from Centrelink a week after the required documents were submitted. Understandably the client was very relieved.

    This case highlights how technology assists us in our work with clients no matter where they are located and also the importance of a collegial approach in obtaining the best outcomes for our clients. 

  • Domestic & Personal Violence: Intervention/Restraining Orders

    Ersel Akpinar, Associate Lawyer, Criminal Law and Regulation, NSW

    What are intervention/ restraining orders?

    Domestic violence laws differ across Australia.  Depending on which State or Territory an individual is in, domestic violence orders are known by different names, including Apprehended Violence Order, Domestic Violence Order, Family Violence Intervention Order and Restraining Order.  Conceptually, however, domestic violence orders operate in a similar fashion.

    • In NSW under the Crimes (Domestic & Personal Violence) Act 2007, an Apprehended Violence Order can be issued to stop harassment and inappropriate behaviour, and if severe enough, can also result in a criminal charge.
    • In Victoria under the Personal Safety Intervention Orders Act 2010 a Personal Safety Intervention Order helps to protect you from someone, other than a family member, who makes you fear for your safety.  An Intervention Order can also be obtained under the Family Violence Protection Act 2008 to protect you from someone who is not a family member but with whom you have had an intimate personal relationship. A Family Violence Intervention Order protects a person from a family member who is using family violence.
    • In Queensland under the Criminal Code the Court can impose a Restraining Order as a result of conduct which causes the victim mental, psychological, emotional harm or fear of physical harm.
    • In Western Australia under the Restraining Orders Act 1997 a Misconduct Restraining Order or a Violence Restraining Order can be issued to prevent intimidating or offensive behaviour.

    For the purpose of this article we will refer to all these types of orders as Violence Orders.

    A Violence Order is an order made by the Court for the protection of an individual.  An application for a Violence Order can be brought either by Police on behalf of a Person In Need Of Protection (“PINOP”) or an individual can seek an order against another for their own protection.  A Violence Order is not a criminal offence. It is a civil order seeking to restrain the behavior of another, even though it is dealt with in the Criminal Jurisdiction.  It should be noted that although a Violence Order is not a criminal offence, the breach of a Violence Order is a criminal offence.

    Legislation

    The following legislation governs Violence Orders around Australia:

    1. Crimes (Domestic and Personal Violence) Act 2007 (NSW);
    2. Family Violence Protection Act 2008 (VIC);
    3. Personal Safety Intervention Orders Act 2010 (VIC);
    4. Domestic and Family Violence Protection Act 2012 (QLD);
    5. Restraining Orders Act 1997 (WA);
    6. Domestic Violence and Protection Orders Act 2008 (ACT);
    7. Domestic Violence Act 1994 (SA);
    8. Family Violence Act 2004 (Tas);
    9. Domestic and Family Violence Act 2007 (NT).

    There are typically two types of Violence Orders, namely, a Domestic Violence Order arising out of a domestic relationship and a Personal Violence Order arising out of any other type of relationship, not being a domestic relationship.

    Domestic

    An Apprehended Domestic Violence Order is brought when the PINOP is in a domestic relationship with the Defendant.  A PINOP is in a domestic relationship with the Defendant in the following circumstances:

    1. The PINOP is or has been married to the Defendant;
    2. The PINOP is or has been in a de-facto relationship with the Defendant;
    3. The PINOP has or has had an intimate relationship with the Defendant whether or not the intimate relationship involves or has involved a relationship of a sexual nature;
    4. The PINOP is living or has lived in the same household as the Defendant; and
    5. The PINOP is or has been a relative of the Defendant.

    Personal

    Generally, a Personal Violence Order is made when the parties are not involved in a domestic relationship or are not related.  For example, if the parties are neighbours, work colleagues, class mates or team mates.

    Orders
    If the Court is satisfied on the balance of probabilities (as opposed to beyond reasonable doubt) that the PINOP has reasonable grounds to fear the Defendant and in fact fears for their safety the Court may grant a Violence Order and in doing so may stipulate various conditions.  A Violence Order is generally divided between Mandatory Orders and Additional Orders.  The Mandatory Orders in NSW are as follows, and are similar in other states:

    1. The Defendant must not assault, molest, harass, threaten or otherwise interfere with the PINOP or a person with whom the PINOP has a domestic relationship;
    2. The Defendant must not engage in any other conduct which may intimidate the PINOP or a person with whom the PINOP has a domestic relationship; and
    3. The Defendant must not stalk the PINOP or a person with whom the PINOP has a domestic relationship.

    The Court may also impose Additional Orders on the Defendant as it deems necessary.  These Additional Orders may include, but are not limited to:

    1. The Defendant must not approach or contact the PINOP;
    2. The Defendant must not enter specified premises occupied by the PINOP, including any place where the PINOP may from time to time reside, work or attend for educational purposes;
    3. The Defendant must not approach the PINOP or any premises at which the PINOP may from time to time reside within 12 hours of consuming intoxicating liquor or illicit drugs; and
    4. The Defendant must not destroy or deliberately damage or interfere with the PINOP’s property.

    Evidence

    Although each case is heard on its own merits, typically the evidence to support an application for a Violence Order may include one or more of the following:

    1. Sworn oral evidence from the PINOP;
    2. Sworn oral evidence from witnesses, which may include family members;
    3. Sworn oral evidence from a Police Officer;
    4. The evidence to support any charges which may be related to any charges laid against a Defendant;
    5. Contemporaneous records, such as a diary note;
    6. Telephone call logs;
    7. Voicemail and text (SMS) messages;
    8. Emails;
    9. Posts and chat from social media such as Facebook.

    Accept, Negotiate or Defend

    A Defendant on the receiving end of a Violence Order has a number of options:

    1. The Defendant may accept a Violence Order on a without admissions or prejudice basis.  This means the orders sought can be accepted without the Defendant accepting or admitting the allegations which form the basis of the application;
    2. The Defendant may negotiate the conditions of the Violence Order and accept a Violence Order following negotiations as outlined in the preceding point.  The Defendant may negotiate:
      1. The PINOPs.  That is, the persons named in the application for a Violence Order being in need of protection;
      2. The duration of the Violence Order; and
      3. The conditions of the Violence Order.
    3. The Defendant may choose to defend the Violence Order.

    Contravention

    A person who knowingly contravenes a Violence Order is guilty of an offence.  The maximum penalty for contravening a Violence Order includes a term of imprisonment or a substantial fine or both depending on the State or Territory in which the Violence Order is granted.

  • Breaking down barriers to recovery from inappropriate financial advice

    Polina Kinchina, Lawyer, Commercial Litigation, Queensland

    People suffering from loss of any kind can have genuine difficulties opening up and reaching out. A financial loss, coupled with ensuing hardship, is no exception.

    The culture of silently bearing money concerns in addition to vulnerability, shame, pride or self-blame, can create barriers to, and restrain people from, seeking advice and assistance.  As a result, clients may not take the necessary steps to know their rights, and remain unaware that where an investment was made based on inappropriate financial advice, compensation may be available.

    People who seek advice from a professional such as a financial planner have a right to assume they will receive a certain level of care and expertise. Their affairs should be properly managed.  While the overwhelming majority of professionals provide good advice to their clients, some people fall through the cracks. People can lose their financial security, their livelihood and even their homes as a result of poor professional advice.

    Financial advisors are privy to some of their clients’ most intimate details: family, lifestyle, income, debts, goals and retirement plans. This can develop a relationship of dependency and trust on a personal and professional level such that some clients sign incomplete or blank documents, do not investigate alternative options nor seek a second opinion, and invest in products without understanding associated risks.

    Professional advisers owe legal duties to their clients to ensure that the advice that they provide is appropriate. Usually, there are three general legal principles that govern the relationship between a professional and advisor:

    a.Contract – The contract between a client and their advisor can have express terms on how the relationship will proceed. In addition, a Court will often impose implied terms into a contract, for example an implied term that a professional should provide advice with reasonable care and skill.

    b.Negligence – The law imposes a duty of care on professionals to provide advice to their clients at a reasonably competent standard. If the advice falls below this standard, measured against the advice that would have been provided by an ordinarily skilled advisor, the professional may be liable to the client for any losses.

    c.Statute – Legislation also imposes a number of duties on professionals. Some of those duties overlap with pre-existing duties in contract in negligence, while others are unique. In addition, where an accountant preforms specialist roles such as that of an auditor, their role is governed by further extensive regulation.

    Clients ought to be able to trust and rely on their advisors. Yet, such trust is open to abuse. Especially where the advisors’ pay is contingent on commissions, and highest commissions are generated from riskier investments.

    The sales-push culture prevalent in some of Australia’s largest financial institutions has been the subject of a Senate inquiry and intense media scrutiny in the past twelve months. These financial institutions have promoted their top earners into positions of seniority; and in doing so fostered a culture of advisors putting self-interests ahead of their clients’ best interests.

    Fortunately, victims of such a culture may be able to recoup some or all of their losses, if it can be shown the advisor gave inappropriate financial advice.

    For each case it is necessary to consider: (1) what should an advisor, exercising reasonable care and skill, have advised clients at the time? And (2) if inappropriate advice was given, how would the clients’ financial position differ had they received appropriate advice?

    Where inappropriate advice has resulted in loss, several options are available, including alternative dispute resolution (ADR) and litigating in the Courts. While Court litigation may involve complexity and costs, some ADR options could be quicker and at no cost to clients.

    For example, clients can lodge a claim through external dispute resolution bodies, such as the Financial Ombudsman Service and the Credit Investment Ombudsman (both are national bodies). The benefits of these options are that lodging a claim is free, there is no risk of adverse costs orders, and if clients are not happy with the outcome - they do not have to accept it.

    Clients are often unaware of their options and, importantly, litigation hazards such as applicable time limitations. Delay can bar clients from making an otherwise legitimate claim, or be used as a defence to any claim commenced out of time.

    While taking action against their advisors can seem cost prohibitive and daunting, clients should seek expert legal advice early so as to fully understand their rights and entitlements.

  • Disclosure of Confidential Information to the Police

    Paul Jones, Associate Lawyer, Compensation Claims, Queensland

    As a social worker, or even a general member of the public, it is usually expected that if a police officer requested information from you, it is best that you give it to them. Of course, it is always best to help the police whenever possible, but in some cases, you may be legally obligated not to help them.

    If a police officer requests personal information of a sensitive nature, such as personal medical details, the first question asked of the police officer should be “what authority do you have to compel me to give you that information?”

    Police need authority to carry out any number of tasks, including investigating a person’s medical background. This authority is usually contained in the relevant legislation that gives them powers but in some cases it is necessary for police to gain written authority and consent.  For example, if a police officer asked a social worker to talk to them about one of their clients, the social worker should only do so if the client has given consent, preferably in writing. This may mean that the social worker will have to turn the police officer away so that client consent may be obtained. This could be as simple as the social worker making a phone call and obtaining verbal consent but preferably written consent should be obtained. A signed authority from the client would be sufficient. The key, of course, is that the client is aware of what is happening and is agreeable to information being given out.

    This can be further illustrated in the recent case of the Australian Information Commissioner: EZ and EY [2015] AlCmr 23. In this case a police officer rang a GP at a medical centre and asked her to discuss details about her patient. The doctor too readily obliged and told the police officer that the patient was psychotic. In theory perhaps this information was very helpful and may have helped the police, the general public as well as the patient, but the fact remains that the GP acted outside her authority by disclosing personal information without the patient’s consent.

    The Privacy Commissioner’s findings noted the following:

    “In my view, security of personal information does not only relate to physical security of that information, it clearly relates to the steps taken by the holder of the information to ensure it is only disclosed in circumstances that are lawful. In this case, I consider ‘reasonable steps’ to include:

    • questioning the police officer about his reasons for contacting Dr Y in relation to Mr Z’s health, including ascertaining if there was a warrant or other relevant legislation that authorised the collection and disclosure of the information
    • ascertaining if the circumstances could constitute a serious and imminent threat to the person or the public
    • consideration of the various polices, guidelines and obligations in law that apply to the disclosure of personal health information”

    “In this case, there is no information before me to suggest that Dr Y questioned the reasons for the police seeking her views on Mr Z. Further, it is my view that insufficient consideration was given to the obligations imposed on health providers to protect an individual’s health information, and the need for rigour in considering when it was permitted to disclose that information as articulated in various policies, guidelines. I believe that such steps are a necessary part of securing personal information from unauthorised disclosure.” (Reference http://www.austlii.edu.au/au/cases/cth/AICmr/2015/23.html  Paragraphs 76 and 79).

    The Privacy Commissioner ordered that the doctor apologise to her patient in writing and pay $6,500 for the loss caused by the interference with his privacy. The NPP is the National Privacy Principles which can be found in the Privacy Act 1988 (Cth) and they provide the guidelines relating to the provision of personal information.

    The above shows that caution should always be exercised when giving out any personal information about a third party without their consent. In practice it may be a little more difficult to ‘stand up’ to a police officer and turn them away but the consequences of not doing such could be highly detrimental to all parties involved. The simplest way to deal with the matter would be to tell the police officer that you would be happy to assist, provided you have the consent of your client and preferably, that consent should be in writing. If the information is absolutely essential to an investigation or Court matter then the police will simply obtain a subpoena to attain the information. A subpoena is a Court ordered way of giving them authority to obtain the information but it is still an authority.