Is it OK? Duty of care, law & ethics in NSW youth work:
A guide to common legal and ethical dilemmas
(2006) by Nick Manning
contents list
Privacy & confidentiality dilemmas: Contents
When can you share information with other agencies?
- Asking around other agencies
- Warning other agencies
- Volunteers & management committee members
Is it OK to report, or not report, a client's crime to police?
- A client's future crimes (threatened, planned or possible)
- A client's past crimes
Privacy, young people & families
- Runaway?
- Report a missing person's whereabouts?
- Tell family about young person's drug use?
Client confidentiality has long been an ethical principle in welfare work and youth work. These days it is also required by law.
You must not disclose personal information, information about a person who can be identified, unless one of the permitted exceptions apply.
For more information about the legal requirements, see Privacy & confidentiality in NSW youth & welfare agencies (link below).
For a model policy you can adapt for your agency, see Model policies on working with young people, for non-residential youth services in NSW (link below): Part 5: Privacy and confidentiality.
Below are some common youthwork and welfare work dilemmas and how privacy law and confidentiality ethics might apply.
When can you share information with other agencies?
Generally you should only share client information with other agencies either:
- with the client's consent, or
- to reduce a serious and imminent threat to someone's life or health.
(Reporting crime to the police is a separate issue. See Is it OK... to report or not report a client's crime to police - below).
1. With consent
To be legally valid, a person's consent must be freely given, not given under pressure.
Some agencies make it a condition of using their service that clients consent to their personal information being shared with other agencies. However this may not be legally valid, as the client is under pressure to agree in order to get the service they need.
You can share information with other agencies with the client's consent, as long as this consent was not a condition for getting the service. For more information about privacy and consent, see Model policies (link below).
2. To reduce a serious and imminent threat to life or health
You can disclose personal information to prevent or reduce a serious and imminent threat to the life or health of any person (the client or someone else). For background information see Privacy & confidentiality in NSW youth & welfare agencies (link below).
Asking around other agencies
A youth worker is worried about a 13 year old boy who is spending a lot of time at the youth centre and appears very withdrawn. The boy refuses to talk to the youth worker. Can the youth worker approach:
- the boy's family
- the school counsellor
to discuss his situation and needs?
Discussing a client is an example of collecting personal information and disclosing personal information. The privacy laws generally only allow you to discuss a client with another agency in 2 specific circumstances (explained above):
-
With consent? The 13 year old boy has not consented to the youth worker sharing information with his family or the school counsellor. The youth worker could ask for his consent, but at this stage she hasn't done this.
-
To reduce a serious and imminent threat to life or health? There might possibly be some sort of threat to the boy's life or health, but at this stage the youth worker has no real evidence of this. And the worker has no evidence that the threat, if it exists, is serious and imminent.
The youth worker therefore cannot discuss the boy's case outside the youth centre team at this stage.
Warning other agencies
There are several situations where you may wonder if you can and should warn another agency about a client. These situations are more common in accommodation services but could occur in any human service agency.
In the following 3 cases, assume that you do not have the client's freely given consent to disclose information (see With consent above).
Violence
You call the police when Mick, a client of your agency, traps a staff member in the kitchen and threatens her with a knife, demanding that she write a favourable court report. The police give him bail but you have already taken out an apprehended violence order (AVO) banning him from approaching the agency. He says that he will go straight to a similar agency in the next town.
Can you warn them?
There is probably a serious and imminent threat to the life or health of a worker at the next agency. Warning them would therefore be OK under the privacy laws and may be part of your duty of care, at least in extreme cases.
Breaking the rules
You evict Cuong, a resident at your accommodation service, for playing loud music in the middle of the night despite repeated warnings. Cuong goes straight to the accommodation service in the next suburb. They ring you up to find out all about him. You want to tell them about the loud music, and also that Cuong had told you he was up on an assault charge last year.
Can you tell them?
The loud music is disruptive but is not a serious and imminent threat to the life or health of anybody.
Being "up on an assault charge last year" is not enough information to believe that there is a serious and imminent threat to the life or health of anybody, because:
- the charge was some time ago
- he may have been not guilty (he didn't say)
- or the assault may have been very minor
- or there may have been unusual circumstances which led to his behaviour which are unlikely to be repeated.
On this information alone, you probably cannot tell the next agency without Cuong's consent.
Stealing
You call the police when Maria, a client at your agency, is caught stealing a staff member's property. The police give her bail but you have already banned her. She says that she will go straight to a similar agency in the next town.
Can you warn them?
Stealing is a crime and very upsetting and disruptive to the victim and other people, but it is not a serious and imminent threat to the life or health of anybody. You cannot tell the next agency without Maria's consent.
Volunteers & management committee members
A local youth service management committee includes a local resident who is also coach of one of the local soccer teams.
One month the youth worker discusses with her management committee how to deal with Lachlan, a teenager who has been acting out lately. The latest incident involved Lachlan being caught vandalising some equipment at the centre, and behaving aggressively when the youth worker confronted him.
The following week, the soccer coach said to Lachlan, who played in his team, that it would be better if he dropped out of the team for the rest of the season, given his behaviour at the youth centre.
The youth service has breached Lachlan's privacy, by allowing personal information to be used by another agency.
Agencies must ensure that committee members, staff and volunteers do not use personal information about clients outside of the agency, except as allowed by law. This is regardless of whether they gain the personal information through discussion, observation, or by reading written records such as monthly reports, incident reports, files and day books.
Depending on the circumstances, the agency might achieve this:
-
with a confidentiality policy applying to all committee members, staff and volunteers
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by ensuring that management committee discussions about clients do not include names or any other information which could identify the client.
Is it OK to report (or not report) a client's crime to police?
Should a youth worker or welfare worker report a client's crime to police? To understand the legal and ethical issues involved, first you need to distinguish between 2 different situations:
- a client's future crimes (threatened, planned or possible)
- a client's past crimes.
Note: You also need to consider any child protection issues which might require you to report.
1. A client's future crimes (threatened, planned or possible)
-
While you are talking with a client, he makes threats to bash a guy who has "he saw with his girlfriend".
-
You overhear 2 girls at your agency planning a shoplifting scam.
-
A client tells you about a past incident of sexual assault. You see him hanging around and harassing women and are worried that he may offend again.
Do you tell the police?
The question of when to report crime to police raises legal and ethical issues about your duty of care and your duty of confidentiality or privacy. (For background information on duty of care see Duty of care in NSW youth & welfare services (link below).
If you believe that there is a serious and imminent risk to the life or health of any person, then:
- breaching client confidentiality to reduce that risk is OK under privacy laws
- in many cases you may have a duty of care to report to police.
If you do not believe that there is a serious and imminent risk to the life or health of any person, because eg:
- the potential crime does not involve violence or risk to anyone's life or health, or
- you do not believe that the crime is very likely to occur in the near future,
then in most cases the ethical requirement to maintain client confidentiality means that you should not report the planned crime to police.
In either situation you should take whatever steps are appropriate in the circumstances to discourage the person from committing the crime.
2. A client's past crimes
- A client tells you about her previous drug use.
- Another client used to shoplift regularly.
- A third client confesses to once knifing a guy.
Do you tell the police?
Welfare workers hear about lots of crimes - should they report them all to the police? There are legal and ethical issues involved in making this decision.
Concealing a serious offence: It is an offence to fail, without a reasonable excuse, to give information to the police which would help them to arrest, prosecute or convict someone guilty of a serious crime (Section 316 of the NSW Crimes Act 1900).
However this law has not been used against youth workers and other welfare workers in NSW. In most situations, workers probably have a "reasonable excuse" for not reporting: the ethical requirement to protect client confidentiality so that you can continue working with the person to achieve positive outcomes.
In exceptional circumstances with the worst crimes, the community's need for justice and the needs of the victim would outweigh the importance of continuing to work with that client. In such situations you should consider disclosing to police.
If you are worried about the client offending again in the future, see the section above: 1. A client's future crimes (threatened, planned or possible).
In my experience the reality closely matches the generally accepted ethical position:
- youth and welfare workers don't, and shouldn't, report most of their clients' crimes
- youth and welfare workers should, and do, report the worst of their clients' crimes.
To help you make a decision in a particular situation, below are some issues to consider (quoted from Model Policies - link below).
Serious offences: Disclosure in limited circumstances
The issues to consider in deciding whether to breach client confidentiality by reporting crime to police include:
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did the crime occur on agency premises or during an agency program, or was the agency or any of its staff, volunteers or clients a victim of the crime?
-
is the offender a client
-
the nature and seriousness of the crime (eg. did it involve serious violence?)
-
is the crime related to the work you are doing with the client (eg. if you work mainly with offenders, you probably cannot report all their serious crimes)
-
the likelihood of the crime being repeated
-
the value of the work you are doing with the client and the likely effect on that work if you disclose
-
the likely effect on your work with other young people if you disclose (eg. Will they find out? Will they lose trust in you?).
You should consult with your Manager and judge each situation individually.
Privacy, young people & families
You must not disclose personal information, and this includes not passing on information to the young person's parents or other family without consent - unless one of the permitted exceptions apply (see above).
Runaway?
Sue comes to your service, saying she is 16 years old and had to run away to get away from her father because of how he was treating her. A few days later her father rings you and asks if you know where she it. He tells you that she is only 13 and has no right to leave home without his permission.
Sue has the right to privacy so you cannot tell her father where she is without her permission. You may also have a duty of care not to tell him, if there are reasonable grounds to believe that her father might assault her or otherwise harm her.
Depending on the facts of the situation, you may need to report Sue's situation under child protection laws.
Report a missing person's whereabouts?
If a person has been reported to the police as a missing person, and you know where they are, you should contact the police to say that they are OK, but do not tell the police or the person's family where the person is. This is an ethical approach which:
- maintains the person's privacy
- avoids wasting police time
- may reduce the stress on the person's family.
Tell family about young person's drug use?
You are worried about a teenager's alcohol or drug use. Can you tell the family?
Generally, you do not have either the right or the responsibility to disclose to parents, for example, that their child is using drugs, or that they are currently intoxicated. The main exceptions are:
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if the young person freely consents to the disclosure
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if there is a serious and imminent risk to the life or health of any person, and notifying a family member of the young person may reduce that risk.
This second exception might apply:
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when a very intoxicated young person leaves your centre and is in serious danger
-
when a young person is intoxicated and violent and you think that a family member may be able to reduce the risk of violence.
If you are working with a young person to address their drug use, you might explore what possible assistance the young person's family could provide. As part of that process you might try to persuade the young person to inform their family themselves about their drug use, or to consent to you talking with their family about it. But you must respect the young person's decision if they refuse.
For more, see Alcohol & illegal drugs: Law & policy for NSW youth services (link below).
More information
-
Privacy & confidentiality for NSW youth & welfare agencies
www.yapa.org.au/youthwork/facts/privacy.php -
Model policies on working with young people, for non-residential youth services in NSW www.yapa.org.au/youthwork/modelpolicies: Part 5: Privacy and confidentiality
- Alcohol & illegal drugs: Law & policy for NSW youth services
www.yapa.org.au/youthwork/facts/alcohol.pdf (293KB PDF)
Notes
Published: 2006. Opinions are the author's and not necessarily YAPA's.
Applicable to NSW youth services (non-government agencies & local councils) providing accommodation, welfare, social or recreation services to young people. May not be consistent with laws and guidelines in, schools, out-of-home care or health services. "young people" - aged roughly 12-25 years old (unless stated otherwise).
Be careful! YAPA and the author took reasonable care to ensure that this information is correct. However government regulations, laws and standards are complex and changing constantly. The author/s have no health, occupational health and safety, or legal qualifications (unless stated), and information provided is general - it is not specific legal or professional advice. Do not rely on it - check with other publications and authorities and if necessary get qualified legal or professional advice for your situation.
Copyright 2006 Nick Manning. You can: a) quote small amounts of text if you acknowledge the author, publisher, web address & date; b) print out multiple copies of this web page but only if you print the whole web page. No other use permitted without prior consent. Do not put large amounts or all of the text in any other document, including: a policy & procedure manual; a presentation (eg. Powerpoint); a training/learning resource book (eg. for TAFE); a web page. Copyright and training enquiries: nmanning@pnc.com.au
