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CHAPTER FOURTEEN - SHARING OF INFORMATION
Introduction
14.1 Confidentiality of personal health information is the cornerstone of the patient/doctor relationship. Restricted patients are entitled to the same rights to confidentiality as any other patient. Nevertheless, sharing of information between agencies involved in the care and treatment of restricted patients is an essential part of risk management. When a patient is admitted into the mental health system, the Responsible Medical Officer ( RMO) will receive details of their index offence and any previous medical or social circumstances reports. Additional intelligence on the patient's background, mental disorder and risk will continue to be gathered throughout their stay in hospital and will be used to inform the decision-making process at key stages in their rehabilitation, e.g. suspension of detention, transfer and discharge. Where appropriate, consideration should be given to explaining to the patient what information is being shared, who with and why.
14.2 Formal assessment of risk may take place at a number of stages in the patient's progress and will be reviewed and updated as circumstances change. It is therefore important that all relevant information on a patient is shared with the multidisciplinary team on a need-to-know basis. Where a patient is subject to the Care Programme Approach ( CPA), the dissemination of information may be broadened to include external agencies such as local authority housing departments, care providers and the police. Equally, the CPA process may offer opportunities for gathering additional information, e.g. local police intelligence. Decisions on how and when to share information, and who with, will be taken on a case by case basis and should take account of patient confidentiality considerations. Staff should be able to justify in court why they shared information.
Patient confidentiality
14.3 There is legislation which governs and protects confidentiality of information relating to patients and there is additional guidance from the NHS and a range of health professional bodies. The centrepiece of a patient's right to confidentiality is the common law duty of confidentiality. The Data Protection Act 1998 now takes account of the European Directive on Data Protection (Directive 95/46/ EC) and covers both electronic and paper records. The revision of legislation came into force on 1 March 2000.
14.4 The principal new areas covered by the legislation are:
- the Data Protection Commissioner becomes the Information Commissioner;
- the Data Protection Act 1998 extends the provision to manually held records (the previous Act applied only to computer records);
- the Access to Health Records Act 1990 was repealed by the 1998 Act with the exception of the provisions relating to the records of deceased persons;
- applicants are now entitled to access their own record whenever created. (Previously applications for access to health records applied only to records compiled after 1 November 1991.); and
- a requirement to obtain explicit consent from the data subject in order to use subject identifiable information for purposes other than its original intended use.
14.5 The Scottish Executive Health Department ( SEHD) has issued a range of guidance to patients and the NHS beginning with factual information about the Act. This chapter should be read in conjunction with that guidance - NHSMEL (2000) 17 and NHSHDL (2001) 1.
14.6 SEHD facilitated the Confidentiality and Security Advisory Group for Scotland ( CSAGS) to help guide its response to the Data Protection Act 1998. CSAGS published its final report 'Protecting Patient Confidentiality', which followed a public consultation, on the NHS Show website in Spring 2002http://www.show.scot.nhs.uk/csags . SEHD published its response in NHSHDL (2003) 37 'The Use of Personal Health Information in NHSScotland to Support Patient Care' in August 2003. A key requirement on all NHS Boards arising from this HDL is to ensure that all staff are issued with, and supported in their compliance with, the new NHS Code of Practice on Protecting Patient Confidentiality, which is also published on the website http://www.show.scot.nhs.uk/confidentiality/publications/6074NHSCode.pdf . This chapter should be read in conjunction with the Code of Practice.
Release of information to patient
14.7 Restricted patients, whether in or out with hospital, are entitled to regular discussions with their supervisors about their care, progress and the use of their information. Patients will normally be invited to attend for at least part of any case conference held on their care. They should be made aware from the outset that medical information will be shared, on a need to know basis, with the multidisciplinary team caring for them in order to facilitate their care. As far as possible, a patient's wish to have particular sensitive information kept confidential should be respected.
14.8 Patients may be given informal access to their health records by their RMOs but they also have certain statutory rights under the Data Protection Act 1998. The reports which are sent to Scottish Ministers on an individual patient may, for example, have to be disclosed by Hospital Managers if faced with a formal request in writing by a patient under the 1998 Act to access their health records.
Release of information to Third Parties
14.9 There may be times when a restricted patient's supervisor needs to consider the release of information about the patient to a third party such as the police or a potential landlord.
14.10 Guidance on handling personal health information rests on the Code of Practice on Confidentiality of Personal Health Information, issued to the NHS in Scotland, in 1990. The Code sets out the main principles which have to be followed by all NHS staff. The overriding principle of the Code is that information about the health and welfare of a patient is confidential in respect of that patient and such information should not be disclosed to other persons without the consent of the patient, except in certain well defined circumstances. These are :
- where disclosure is in the wider public interest;
- where disclosure is necessary to prevent serious injury or damage to the health of a third party;
- where disclosure is in the best interests of the patient.
14.11 Further guidance and a revised Code of Practice were published in 2003. Details in paragraph 14.6.
14.12 It is for the health professional with overall responsibility for clinical care for the patient to determine in each case whether the circumstances described outweigh the rights of a patient to confidentiality. For instance, the RMO should consider whether the police should be informed about the discharge of a restricted patient into the community in the interest of the patient's safety or the safety of the public.
14.13 In reaching a decision, all relevant circumstances should be taken into account including advice from the multidisciplinary team, the need to protect the public and any rights of the patient to have confidentiality of personal information about him or her protected. While it is essential for each case to be considered in the light of its own facts, the need to protect the public means that the balance may come down in favour of disclosure. Where a decision is made to disclose personal information, only the minimum information necessary to protect the public interest should be divulged. Care should also be taken that the information is relayed to the appropriate person in the receiving body, for instance, a police/hospital liaison officer, to ensure that its handling adheres to the requirements of the Data Protection Act 1998.
14.14 Information in the public domain or a matter of public record is not subject to the duty of confidence.
Discharge of restricted patients
14.15 The police are no longer routinely informed when a restricted patient is discharged from hospital, unless he/she is a registered sex offender. However, the Mental Health Tribunal has to balance patient confidentiality against the wider public safety. Where there are clear implications for public safety in any particular case the Mental Health Tribunal will be required to make a decision on whether the police should be informed. Where they consider this appropriate they will liaise with the RMO to seek the consent of the patient to inform the police about the patient's discharge. Where this is not forthcoming, the Tribunal will take a decision on whether it is necessary to breach patient confidentiality.
Concordat on sharing of information regarding sex offenders
14.16 The Concordat for sharing information on sex offenders stemmed from the work of the Expert Panel on Sex Offending. The Panel recognised that a large number of agencies including the police, prosecutors, courts, prison service, criminal justice social work, as well as housing, health and education authorities play a role in managing the risk posed by sex offenders. The Concordat provides a framework for information sharing and joint working and will be issued shortly.
Management of Offenders Bill
14.17 In addition, an amendment to the Management of Offenders Bill, scheduled to come into force in spring 2006, will establish joint arrangements between the police, local authorities and the Scottish Prison Service as responsible authorities to manage the risk from sex offenders and violent offenders and those offenders who continue to pose a risk to the community. Building on the arrangements in the Bill, an amendment was introduced at stage 2 of its progression through Parliament which provides also for the health service to become a responsible authority in the establishment of joint arrangements for the assessment and management of mentally disordered offenders who are also sex offenders and violent offenders. This will provides a robust statutory framework for ensuring that justice and health work in partnership in providing services to those deemed to pose a continuing risk to the public. Significantly, they will allow the Health Service to formalise the Care Programme Approach and sharing of information between agencies on restricted patients The Forensic Network have agreed to take the development of revised care programme guidance forward in a multi-disciplinary, multi-agency setting as part of their ongoing work.
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