human rights and legislation who resource book on mental health

The user <strong>rights</strong> discussed below apply equally to users of all types of mental health services. A
number of mental health laws specify the <strong>rights</strong> of people with mental disorders (e.g. Brazil,
Lithuania, Portugal, the Russian Federation, South Africa, The former Yugoslav Republic of
Macedonia <strong>and</strong> many others). In this section, some, though clearly not all, of the most important
<strong>rights</strong> are highlighted <strong>and</strong> discussed.
5.1 Confidentiality
MI Principles: Confidentiality
The right of confidentiality of information concerning all persons to <strong>who</strong>m the present
Principles apply shall be respected.
(Principle 6, MI Principles)
Persons with mental disorders have the right of confidentiality of information about themselves
<strong>and</strong> their illness <strong>and</strong> treatment; such information should not be revealed to third parties without
their consent.
Mental health professionals are bound by professional codes of conduct that generally include
rules for confidentiality. All professionals involved in the care of persons with mental disorders
have a duty to prevent any breach of confidentiality. It is important that all members of the mental
health team be aware of the rules that bind them to maintaining confidentiality. Authorities in
charge of mental health facilities should also make sure that adequate processes are in place to
safeguard the confidentiality of persons with mental disorders. This means having an effective
system in place so that only authorized individuals have access to patients’ clinical notes or other
data-recording mechanisms such as electronic databases.
Mental health <strong>legislation</strong> may also protect confidentiality by providing for sanctions <strong>and</strong> penalties
for breaches of confidentiality, either by professionals or mental health facilities. Wherever
possible, remedies other than legal prosecution, such as education of the person <strong>and</strong>
appropriate administrative procedures, should be used where there has been disregard for
patients’ confidentiality. Nonetheless, in certain exceptional cases criminal sanctions may be
necessary.
There are a few exceptional instances when confidentiality may be breached. Legislation may
specify the circumstances when information on mental health patients may be released to other
parties without the prior consent of the user. These exceptions may include situations such as
life-threatening emergencies or if there is likelihood of harm to others. The law may also wish to
cover circumstances such as prevention of significant morbidity or suffering. However, the
information disclosed should be limited only to that required for the purpose at h<strong>and</strong>. Also, when
courts of law require the release of clinical information to judicial authorities (in criminal cases, for
example), <strong>and</strong> if the information is pertinent to the particular case, mental health professionals
are obliged to provide the information required. There are other complicated issues concerning
the need to maintain confidentiality <strong>and</strong> the need to share certain information with primary caregivers
<strong>who</strong> are often family members (discussed in section 6 below). Legislation may ensure that
patients <strong>and</strong> their personal representatives have the right to ask for judicial review of, or appeal
against, decisions to release information.
5.2 Access to information
Persons with mental disorders should have a statutory right to free <strong>and</strong> full access to their clinical
records maintained by mental health facilities <strong>and</strong> mental health professionals. This right is
protected by general <strong>human</strong> <strong>rights</strong> norms, such as Article 19 of the ICCPR <strong>and</strong> the MI Principles.
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