Accountability with privacy: confidentiality in the guardianship system

Openness and transparency are generally regarded as important safeguards to ensure accountable and fair decision-making. A high standard of decision-making is particularly important when dealing with a vulnerable group of people such as adults with decision-making disabilities.

But there is also another important consideration at play in the guardianship system (which is the system with responsibility for adults with decision-making disabilities) - the rights and interests of the adults it is designed to support. Like other members of the community, adults with decision-making disabilities are entitled to their privacy and the openness generally favoured in decision-making may infringe that interest.

The guardianship review

These are some of the issues the Queensland Law Reform Commission is grappling with in its review of Queensland’s guardianship legislation. In late 2005, the Attorney-General and Minister for Justice referred the guardianship laws to the commission, an independent body, for in-depth review. The first stage of the commission’s review is an examination of the confidentiality provisions of the guardianship legislation. (The commission’s terms of reference can be viewed on its website.)

There are obvious tensions in the guardianship system between privacy and disclosure. On the one hand, guardianship matters are inherently personal. The guardianship system regulates decision-making by and for adults with impaired capacity about personal, health, financial and legal matters. Guardianship matters involve discussion of intimate, and sometimes sensitive, details of people’s lives and often involve consideration of confidential medical or other information. The system is concerned with decisions that would, but for the person’s decision-making disability, be made in private.

On the other hand, responsibilities are conferred on public bodies, and on individual substitute decision-makers, who are answerable to a public system and who should be accountable. This accountability is critical given that the guardianship system involves decision-making that affects people’s fundamental rights - decisions, for example, about refusal of life-saving medical treatment.

The current law

How, then, should this tension between privacy and disclosure be resolved? At present, the guardianship legislation in Queensland regulates the confidentiality of information in the guardianship system in three ways.

First, the legislation imposes a duty of confidentiality on people who receive personal information about someone through their involvement in the guardianship system, such as agencies or people who perform functions under the legislation. The ban on disclosure applies only if the information has not already been made public and only if the information identifies the person to whom it relates. Some disclosures are also permitted, for example, if consent has been given. But the duty can limit the information that may be given to families by formal decision-makers for an adult with decision-making disabilities.

Second, the legislation prohibits publication of information about proceedings of the Guardianship and Administration Tribunal. This means, for example, that a newspaper is unable to print a story about a tribunal hearing, unless they have a “reasonable excuse” or they have the tribunal’s permission to do so. This prohibition applies even if the story does not identify any of the people involved in the hearing.

Third, the legislation gives the tribunal power to make case-by-case “confidentiality orders” if it is satisfied it is “desirable to do so because of the confidential nature of particular information or matter or for another reason”. A confidentiality order can:

• direct who may or may not be present at a hearing;
• direct that a hearing, or part of a hearing, be held in private;
• prohibit or restrict publication of information given before the tribunal or matters contained in documents before the tribunal; or
• prohibit or restrict disclosure to an active party of information given before the tribunal, matters contained in documents before the tribunal, or the tribunal’s decision or reasons.

When considering whether to make a confidentiality order, the tribunal would also need to consider the requirements of “open justice” and “procedural fairness”.

These principles strike at the core of our ideas about justice and fairness. Open justice is the idea that court proceedings are ordinarily to be held in public and subject to fair reporting. It enhances public scrutiny and accountability. Procedural fairness requires that persons affected by legal decisions are given a fair hearing. It provides that each side must be heard and given an opportunity to respond to evidence against them.