Carers identified?

4.6 Impact of legislation on carers

Page last updated: 2010

4.6.1 Carer recognition legislation

There is now a move towards a whole of government approach to recognise, support and meet the needs of carers. The table above illustrates the fact that some states and territories have enacted Carer Recognition Acts and carer recognition policies are in place or about to be introduced in others. This ensures a whole of government approach to ensuring that policy, program and service development meets the needs of carers. However, while these Carer Recognition Acts provide legislative recognition for carers they do not address the issue of identification, particularly in the mental health area where there is a balance that has to be achieved between the right to privacy for the consumer, and the carers' need for information in order to achieve better outcomes for the consumer.

The National Carer Recognition Bill 2010 was tabled in Parliament in March 2010. The Bill establishes a definition of carer and sets down ten principles, including the fundamental principle that all carers should have the same rights, choices and opportunities as other Australians.

The Bill also means that all public service agencies will need to make sure staff have an awareness and understanding of the principles. Any public service agencies with responsibility for policies, programs and services that affect carers and the people they care for will need to ensure their staff take actions to reflect the principles, report on how they meet the principles, and consult with carers and representative bodies on issues.

While this is a crucial piece of legislation, it does not address the issue of identification. Top of page

4.6.2 Privacy legislation

The Carers Australia Senate Inquiry submission [2007] states:

An unexpected outcome of the complex interaction of the Privacy Act 1988, the Freedom of Information Act 1988 and Mental Health Acts is that carers denied information about a consumer are still "expected" to care for and support the consumer upon discharge.

They go on to say:

...systemic misunderstanding of the rights, obligations and responsibilities of carers, consumers and service providers exists within all relevant services. This lack of understanding leads to inconsistencies in application and frustrating interactions between carers and mental health service providers.

There is an urgent need for programs to ensure that carers' rights, obligations and responsibilities are understood and that mental health service providers comply.

Attempts have been made in the public sector in Victoria in the Chief Psychiatrists Guidelines regarding confidentiality and in the private sector by way of the Privacy Kit for Mental Health Service Providers to clarify issues regarding confidentiality for clinicians. This issue has also been addressed by other states and territories by the development of policies and guidelines however it appears that this has resulted in little change in practice at service delivery level. Current practice indicates that the legislation continues to be used as the reason for not sharing information with carers.

The Australian Law Reform Commission undertook a review of privacy law in 2008 and recognized that disclosure of information to 'a person responsible for an individual' can occur within privacy law. The need for legislative reform in this area was also recognized by the 2009 House of Representatives Inquiry into Better Support for Carers. Recommendation 14 of that report called for investigation of whether privacy and mental health legislation 'adequately allows carers to be involved in the treatment of the individuals for whom they care'. Top of page

Identification is a pre–cursor to sharing information and providing support.

Some states and territories already support carers and provide information to assist them understand their rights to access information within the existing legislative framework. However, these processes pre–suppose identification.