Counselling and disclosure of results

Current law and practice

35.182 The provision of counselling before and after parentage testing is an important means of ameliorating the emotional impact of parentage testing and maintaining existing family relationships. By undergoing counselling before engaging in parentage testing, a child may gain an understanding of the reasons his or her parent is seeking the test and may discuss the possible impact of the test results on any existing relationships with that parent. Similarly, a parent may gain a better understanding of the consequences of the test for his or her relationship with the child or with the other parent.

35.183 At present, the FLA provides for counselling in a number of contexts, such as in proceedings relating to children.[170] Indeed, a court exercising jurisdiction in proceedings relating to children is obliged to consider whether or not to advise the parties about counselling in order to assist family members to adjust to the consequences of a court order.[171] In contrast, where parentage testing is conducted outside the family law framework, there is no requirement that those involved obtain counselling before or after testing.

35.184 It is difficult to assess how many persons undergoing parentage testing have an effective opportunity to be counselled. The Inquiry understands that neither accredited nor non-accredited laboratories commonly provide counselling services. Several accredited laboratories have on-site counsellors available, and several laboratories refer clients to other counselling services, or forward the test report to the client’s medical or legal practitioner in the expectation that they will provide counselling, if necessary.

35.185 Vern Muir, director of non-accredited DNA Solutions Pty Ltd, advised the Inquiry that his company’s policy is to have persons dealing with clients undergo a qualified counselling course.[172] Dr Geoffrey Edelsten, director of non-accredited Gene-e Pty Ltd, advised the Inquiry that all putative fathers who discover that they are not the biological father of their child are offered counselling. He stated:

There has not been one case of over 250 clients who have been offered counselling where this has been requested and undertaken. … They are offered alternatively to have the counselling through their medical practitioner and other health services in their states. But again it is not known of any such cases where this has been undertaken.[173]

35.186 Once a genetic sample has been analysed by a private laboratory,[174] the DNA profile and test results created from the sample would generally be ‘personal information’ as defined by the Privacy Act.[175] The acts and practices of the laboratory in relation to that information are subject to the National Privacy Principles. Laboratories attached to state and territory public hospitals are not bound by the Privacy Act, but must comply with similar state or territory privacy legislation, where it exists.[176]

35.187 Due to the shared nature of parentage information, it is reasonable to assume that disclosure of the test information to each person providing a bodily sample is either for the primary purpose of collection or for a related secondary purpose. The disclosure of results to each person providing a genetic sample thus appears to comply with the Privacy Act. The position is less clear, however, where disclosure is to an individual who has not provided a sample and has not contracted with the laboratory to receive the results of the analysis.[177]

Issues and problems

35.188 In his interview with ABC-TV’s Lateline in October 2000, the Chief Justice of the Family Court, Alastair Nicholson, raised the potential emotional impact of parentage testing on a child:

[O]ne of the problems about these exercises is that a lot of people don’t pay sufficient regard to the child, and of course, it’s a terrible thing for a child who's been brought up, for example, for 11 or 12 years to believe that a person is their father and for all intents and purposes is their father, to be suddenly told that person is not. … I’ve seen cases where it causes enormous resentment, indeed the fact of taking the test can cause a complete rupture in relationships between the child and the father.[178]

35.189 Concerns also arise regarding a parent’s potential response to discovering, through parentage testing, that he or she is not the biological parent of a child. For example, if an unstable parent receives test results indicating misattributed parentage, in the absence of counselling he or she may in some circumstances become aggressive or violent toward the child or other family members. Geneticist, Dr Brian McDonald of DNA Consults, has stated:

This is potentially explosive information. A lot of these people are on the edge as it is. Don’t you think that a mother might need to know that her former partner has just found out he is not the father of one or more of her children? It is vital that she knows. Even if it is just so she can leave town for a few days while he cools down …[179]

35.190 One further issue raised during the course of the Inquiry was the appropriateness of parentage test results being made available directly to the tested individuals. Some laboratories send the parentage test reports by mail directly to the client or to each person providing a bodily sample for testing. The Inquiry understands that at least one laboratory gives its clients parentage test results over the telephone. Other laboratories forward test results to a nominated medical practitioner or lawyer of each person tested.[180]

Submissions and consultations

35.191 DP 66 proposed that NATA should develop accreditation requirements that require laboratories performing DNA parentage tests to inform all persons who provide genetic samples of the availability of counselling, both at the time the samples are submitted for testing and at the time the results are made available. The Inquiry had also proposed that test results be forwarded to an independent person who has the skills to counsel the tested individuals and other relevant family members. Such a person was to be nominated by each individual who has provided a genetic sample, and might be a qualified counsellor, social worker, minister of religion, medical practitioner, lawyer or court officer.[181]

35.192 Several submissions supported the proposal.[182] NATA expressed support provided that laboratories would only be required to give general advice about the availability of counselling, and provided the person submitting the sample clearly nominated the independent person to whom the test results should be forwarded.[183]

35.193 The FLC recommended that counselling for the child should be required whenever parentage testing is conducted and the test results are different from the child’s current understanding of paternity. The Council suggested that resources be developed to accompany test results, for example, a brochure containing information and advice on disclosing the results and listing referral services that could assist.[184] The FLC considered that court ordered test results should not be released to the parties but to a suitable intermediary with the experience and expertise to deal with the issues arising out of parentage testing.[185]

35.194 Reliable Parents Inc supported the need for counselling but suggested that the Family Court’s counselling services would be more appropriate than the ad hoc framework suggested by the Inquiry.[186] The South Australian Department of Human Services considered that counselling before and after testing should be mandatory for all family members seeking parentage testing; however, the Department suggested that the list of professionals proposed by the Inquiry needed further consideration.[187]

35.195 Genetic Technologies argued that counselling should not be mandatory. The submission noted its current practice is to forward results by post directly to the person who has commissioned the test, and suggested that forwarding the results to third parties would generally be inappropriate.

Overall, although counselling may indeed be important, to compel parties to undergo counselling in order to receive their test result effectively fails to respect individuals’ rights to autonomously refuse such counselling (and again may provide another incentive to procure testing from overseas providers). On the other hand, we are more than happy to advise of the availability of counselling—in fact we already do so as a matter of course, although this is only very rarely taken up.[188]

35.196 The Commonwealth Attorney-General’s Department noted that the general policy in family law is that counselling should be available, but not compulsory.

While there may be merit in informing persons who undergo parentage testing of the availability of counselling, we think further consideration needs to be given to whether or not it should be a requirement of accreditation that the laboratory forward the test results to a prospective counsellor.[189]

Inquiry’s views

35.197 The Inquiry considers that access to counselling before and after parentage testing is an important means of minimising the emotional and psychological impact of such testing on the persons involved.

35.198 Although a large number of submissions supported the proposal, other submissions have raised legitimate doubts about the utility of compulsory counselling in all cases involving parentage testing. In the majority of cases, where parentage is confirmed, the parties may not consider counselling necessary. Even in those cases in which a parentage exclusion is reported, the parties may be able to deal with the information without the need for third party counselling. Of course, there will be cases in which the test results are shattering to those involved and may impact negatively on the social parent’s relationship with the child, and potentially with the family.

35.199 The Inquiry accepts the concerns raised in several submissions that counselling should not be forced upon unwilling participants. The law must strike a balance between protecting individuals (especially minors) from harm, and respecting an individual’s autonomy to make decisions affecting personal and family life. Consistently with general family law policy, the Inquiry considers that counselling should be available and encouraged, but should not be universally imposed upon all individuals undergoing testing, regardless of their own wishes.

35.200 The Inquiry recommends that NATA should develop accreditation requirements that require laboratories performing DNA parentage tests to inform all persons who provide genetic samples of the availability of counselling, both at the time the samples are submitted for testing and at the time the results are made available. This advice should explain the importance of counselling for that person’s ongoing relationship with the child. In addition, laboratories should provide all parties with a list of available counsellors at the time the samples are received, and upon receipt of the results.

Recommendation 35–11 NATA should develop accreditation requirements that require laboratories performing DNA parentage tests to inform all persons who provide genetic samples of the availability of counselling, both at the time the samples are submitted for testing and at the time the results are available.

[170]Family Law Act 1975 (Cth) ss 62C–62E.

[171] Ibid s 62B(2).

[172] DNA Solutions, Submission G162, 30 May 2002.

[173] G Edelsten, Submission G117, 14 March 2002.

[174] Private sector laboratories generally fall within the definition of an ‘organisation’ under the Privacy Act: Privacy Act 1988 (Cth) s 6C.

[175] Ibid s 6. The profile is information about an individual whose identity can reasonably be ascertained from it. The parentage test report would likewise contain information about an individual whose identity is apparent. The possible application of the Privacy Act to the samples themselves is discussed in Ch 8.

[176]Health Records (Privacy and Access) Act 1997 (ACT); Health Records Act 2001 (Vic); Privacy and Personal Information Protection Act 1998 (NSW); Information Privacy Act 2000 (Vic).

[177] For more discussion, see Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney [31.137]–[31.142].

[178] Lateline, DNA Testing and the Family Court: Transcript, ABC TV, <www.abc.net.au/lateline/
s200192.htm>, 18 February 2003.

[179] G Bearup, ‘The Doubt About Dad’, The Good Weekend (The Sydney Morning Herald), 3 November 2001, 16, 19.

[180] For example, see DNALABS.SIVF website: Sydney IVF, DNA Paternity Testing, <www.sivf.com.au/
dna_paternity_testing.htm>, 20 February 2003.

[181] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 31–12.

[182] Genetic Support Council WA, Submission G243, 19 December 2002; Family Law Council, Submission G202, 28 November 2002; Victorian Bar, Submission G261, 20 December 2002; NSW Health Department, Submission G303, 13 January 2003; Human Genetics Society of Australasia, Submission G267, 20 December 2002. The AGSA agreed, so long as the nominated person is genetically trained: Association of Genetic Support of Australasia, Submission G284, 25 December 2002.

[183] National Association of Testing Authorities Australia, Submission G273, 18 December 2002.

[184] Family Law Council, Submission G202, 28 November 2002.

[185] Ibid.

[186] Reliable Parents Inc, Submission G204, 27 November 2002.

[187] Department of Human Services South Australia, Submission G288, 23 December 2002.

[188] Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002.

[189] Commonwealth Attorney-General’s Department, Submission G228, 12 December 2002.