Step one – Develop a clear understanding of your objectives
This policy will allow the First-tier Tribunal and Upper Tribunal, respectively, to issue a direction prohibiting the disclosure of a document or information to a person ("the recipient") if a registered medical practitioner or a registered nurse has advised that the information is likely to cause serious harm to the person's physical or mental health.
The General Medical Council's Guidance on Consent sets out that "in very exceptional circumstances" it may be appropriate for the non-disclosure of information to a patient if it would cause them serious harm. The guidance goes on to say that 'serious harm' means more than that the patient might become upset, decide to refuse treatment, or choose an alternative. In the context of people who are applying for disability assistance under Special Rules for Terminal Illness, the Chief Medical Officer's guidance for doctors and nurses completing the Benefits Assessment for Special Rules in Scotland (BASRiS) form for terminal illness also notes the limited exception of "serious harm" where it may be appropriate to withhold the information from the patient. The guidance states that harmful information is anything that would be considered to cause serious harm to an individual's mental or physical health if they were to become aware of it (e.g. a diagnosis of malignancy).
Under section 62A of the Social Security (Scotland) Act 2018, Scottish Ministers have powers for the non-disclosure of information to a recipient if it relates to the physical or mental health of an individual and if a registered medical practitioner or a registered nurse has advised Scottish Ministers that the information is likely to cause serious mental or physical harm to the recipient if disclosed. The recipient could be the patient or the parent/individual with legal parental responsibilities for a child.
However there are no provisions in The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 or The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018 to allow the First-tier Tribunal or the Upper Tribunal to prohibit the disclosure of a document or information to a person if that information is likely to cause them serious mental or physical harm.
There is a risk that harmful information that is shared with the First-tier Tribunal or the Upper Tribunal during an appeal could be shared with the individual. Although we expect that the need for either Tribunal to issue a direction will only occur in exceptional circumstances, the repercussions of disclosing information that would cause serious harm to an individual could be devastating for individuals and their families.
The aim of this approach would be to reduce the possibility of this happening in cases involving some of the most vulnerable clients. The approach is in line with Scottish social security principles to respect the dignity of individuals and the client's right to choose. The proposed change will be applied equally to all clients on the basis of their individual circumstances. We do not anticipate island communities to be impacted in a different way.
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