Today’s question asks for
… a perspective on confidentiality and fire safety from a NSWSES volunteer perspective.
My day job is with NSW Health in a community role, and when a property is a fire risk, we report them to the FRNSW hoarding register. Vic Metro also runs a register which I understand to be even more comprehensive (they will flag addresses that will need additional appliances sent in a fire response and I believe NSW is working towards this). We consider this essential to improve safety for first responders, as well as the increased risk of the resident dying.
I run informal training around hoarding and squalor for members, and have referred addresses that I’ve attended jobs at to the register with the explicit consent of the resident. When I’ve made referrals, FRNSW have followed up with me and have been very appreciative.
However, I believe that more often than not, a resident would be unlikely to consent, and most members would be unlikely to feel confident having this discussion anyway. However, there are a variety of physical and mental health risks to an individual (and first responders) and NSWSES can be in a unique position to become aware of concerning situations.
If FRNSW or council are not aware of a situation- they will not be able to offer support to the resident….but it is a breach of confidentiality to share an address without permission, even for welfare/moral reasons – even though there is an increased risk of injury/fatality to FRNSW first responders and residents if they don’t have this information (see https://www.fire.nsw.gov.au/page.php?id=913).
I’m confident the answer, legally, would be no regardless – but curious if there are any exceptions like duty of care?
There are some interesting issues there. To deal with one preliminary issue – the concept of ‘duty of care’ comes from the common law of negligence. It is not an ‘exception’, the exercise of what is ‘reasonable care’ requires consideration of other legal obligations (see Transporting sedated patients in WA (December 30, 2019)).
I have previously talked about privacy issues in emergency response most in regard to taking photos but, more relevantly in this context, discovering crime (noting that ‘hoarding’ is not a crime, but some of the issues with regard to reporting may be similar – see Discovering crime during an emergency response (July 19, 2016)).
SES volunteers are not (at least not in that capacity) health practitioners so the common law and implied contractual obligations of confidence do not apply. When I go to see my doctor in his or her rooms there is an expectation that everything said there is confidential. An SES member responding to my home in response to a request for assistance is not in anything like the same relationship, but there remains various duties of confidence. In particular the SES is a ‘public sector agency’ (Privacy and Personal Information Protection Act 1998 (NSW) s 3) so is certainly bound by the privacy principles adopted in NSW by the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW). Although the SES is not a health service provider, information about hoarding may be information about their health if it is a symptom of a mental illness.
Privacy and Personal Information Protection Act 1998 (NSW)
Personal information is (s 4) ‘information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion’. Section 4 goes onto say:
… personal information is “held” by a public sector agency if:
(a) the agency is in possession or control of the information, or
(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement …
Where an SES team attend a scene and form the view that the person is a hoarder and the house poses a risk to them or to others that would be ‘personal information’ that is held by the SES as it has come to the SES volunteers (‘a person … engaged by the agency’). So the SES has that information whether it is recorded in any document or not though, to be fair, it does not seem to make sense to described information as ‘held’ unless it has been recorded somewhere. A agency cannot destroy information that exists only in someone’s head (s 12) or that a person can ‘correct’ an information or opinion only held in a person’s head (s 15). But, having been given information, it is appropriate to require a person to use it only for the purposes for which it was given (s 17) and not disclose it (s 18) and that does not matter whether the information is recorded or not.
Putting aside the question of whether information that is held only in a volunteer’s head is also ‘held’ by the agency we can look at s 18. It says
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or …
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
The SES are called to a house and make observations about the state of the premises and the well-being of the occupier. The clause that would allow them to communicate that information to a local health authority or Fire and Rescue NSW would be s 18(1)(c). That begs the question of what is a ‘serious and imminent threat’. If there is a threat to firefighters should there be a fire there is no ‘imminent’ threat in the absence of the fire (see Lobsey v Care (1983) 1 MVR 1, discussed in the post Authority to enter private property for a hazard reduction burn (July 9, 2016), for a discussion on what ‘imminent danger’ might mean).
There are exemptions Relating to Information Exchanges between Public Sector Agencies, eg the NSW SES and Fire and Rescue NSW but none of those exemptions would be relevant in this context (see ss 27A and 28(3)).
Let us conduct a thought experiment. You are at home and you call the SES because of water entering your home after a storm. They attend and do what the SES does but the team observe that your home is squalid at ‘Frost’s clutter image 6’ (see Fire and Rescue NSW, Hoarding or Squalor Fire Risk Report). That has no implication for the SES work ie the SES can still tarp the roof. The SES member forms a view that the person is a hoarder and perhaps mentally ill. They report the matter to the local public health authority and someone from that authority comes and knocks on the door. I think that person could well complain that there has been a breach of privacy in that they did not call the SES for that issue, the SES had information and formed an opinion about that person and disclosed that information for purposes unrelated to their SES function.
What of duty of care? What duty does the SES owe that person? It’s not illegal to hoard property, there is no general duty to rescue and certainly not to rescue the person from themselves (Stuart v Kirkland-Veenstra  HCA 15). Even if the SES owes a duty of care it is a duty to act reasonably in the circumstances which includes consideration of conflicting responsibilities ie not to breach the person’s privacy. Unless it can be concluded that there is ‘a serious and imminent threat to the life or health’ then it would appear to me to be a breach of privacy. A better option would be to talk to the person (either the team or a more senior and ideally trained member) to get them to give permission to the SES for the information to be shared.
As for the duty of care to potential firefighters who may, or may not be called to the scene, I cannot see how that could arise, and even if it did the response has to take into account the privacy obligations set out in the Act.
Health Records and Information Privacy Act 2002 (NSW)
Health information includes ‘personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual…’ (s 6). That the person is a hoarder may be personal information, that they are mentally ill is health information.
The Health Privacy Principles set out in the Act are much like the principles in the Privacy and Personal Information Protection Act including that information must not be used for a ‘secondary purpose’ unless there is ‘a serious and imminent threat to the life, health or safety of the individual or another person’. A member of the SES may form an opinion about someone’s state of health (or mental health) but whatever information they have was obtained as part of their SES duties so using it to say seek health assistance would be a ‘secondary purpose’. In the absence of consent, it would seem to me to be a breach of privacy to report that information to say a local health authority or FRNSW.
But we didn’t collect the information
One possible ‘work around’ is that the SES did not collect this information, they did not ask for it. To quote my earlier post ‘ Once the firefighters are lawfully ‘on scene’ they can’t help observing that which is in plain sight…’ so if you just see that the person is a hoarder do the principles apply?
I think they do; the observation is not simply what one can see from the street, the reason the SES get that information is they get invited in and they get invited in because they are the SES and are asked to do the tasks the SES do. One can ask ‘if SES attended a home to do a storm job and formed a view that the person was mentally ill, even though they only formed that view from what they saw and what they asked, could they go and tell the press (or if they took a photo, could they sell it to the press)?’ (For a discussion on photos in this context see for a similar discussion regarding photos see Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013)). The answer has to be ‘no’ and the right of privacy, set out in the legislation and governing public authorities, doesn’t draw the distinction between who they tell. If they cannot tell, or sell to, the press then they cannot tell FRNSW or the local health authority unless there is a statutory exception. And the exception requires ‘a serious and imminent threat to the life, health or safety of the individual or another person’.
If, on the other hand, an SES crew are just driving down the street and observe the material built up around the house and can see that and form that view without going in and without talking to the person, then yes that could be reported. There is ‘no property in a spectacle’ (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479).
Where the SES attend a job and form a view that there is a risk either to the householder or potential (and as yet unidentified) subsequent responders it would be, in my view, a breach of the privacy principles to report those concerns to a local health authority or FRNSW unless the person consents to that or there is reason to believe that there is both ‘a serious and imminent threat to the life, health or safety of the individual or another person’. A potential threat that may or may not arise sometime in the future, is not enough.
I would like to give an example of where we (FRNSW) encountered ‘a serious and imminent threat to life, health or safety of the individual or another person’. We had a situation where an elderly gentleman who was a hoarder had one of his carers notify us of a mercury spill inside his home. It was spread out over a considerable area and on carpet so extremely difficult to recover. He was walking around with bare feet and broken glass was everywhere. Our dilemma at the time was which agency had the legislative power to organise a cleanup and/or remove the gentleman from the hazard. Obviously not us, nor the police or ambulance. Luckily a local area health nurse arrived and organised for him to be hospitalised and a clean up to take place. I believe that it may have been organised under Chapter 4 Section F: Compulsory treatment in the community under the Mental Health Act 2007.
That would indeed be a ‘serious and imminent threat to life, health or safety’ but as you can see, the SES attending to a roof job does not create that risk even if there is a change that sometime in the future that may happen.