Adult Support and Protection (Scotland) Act 2007: Code of Practice

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Chapter 8: Examination of records

1. This chapter provides guidance on Section 10 of the Act which permits council officers to obtain copies of health, financial or other records relating to an adult known or believed to be at risk, if this is required to establish whether further action is required to protect that adult from harm. Health records may be inspected only by a health professional (a doctor, nurse, midwife or other type of individual described by order of the Scottish Ministers).

Information sharing and confidentiality

2. Existing law allows information to be disclosed without consent where such disclosure is required by law (either a court order or statute) or where such disclosure is in the public interest. If it is the public interest test that is relied upon, then such disclosure must be proportionate to the harm it is being sought to prevent. Crime detection and prosecution, as well as prevention, may provide legitimate grounds for disclosure. NHS Boards are required to ensure that their staff are aware of and can operate local procedures for sharing of information with the police to promote the prevention and detection of crime, while respecting and safeguarding the interests of patients and the public in the confidentiality of personal health information.

3. Under Section 10 of the Act a council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an adult at risk, to give the records, or copies of them to the officer, to enable or assist the council to decide whether it needs to do anything to protect an adult at risk from harm.

4. In accordance with the principles in Sections 1 and 2 of the Act, the adult's consent should be obtained prior to the information being obtained. Where such consent cannot be obtained, the adult should, if possible be informed about the information sharing.

5. There may be some areas of cross-over between child protection and adult protection information, particularly when dealing with families which may have both children and adults at risk. Information which originates as child protection information may ultimately trigger an adult protection investigation and vice versa. Although they may be investigated separately, a link between the two needs to be maintained. A further area of overlap may exist where an individual is aged 16 or 17 and could be classed as both a child and an adult at risk. It is important that transitional arrangements between child and adult protection services are in place, including co-operation between Adult Protection Committees and Child Protection Committees.

6. The Section 2 principles require that any decision or course of action being considered should, as far as possible, take into account the adult's views as well as the views of the adult's nearest relative, primary carer, guardian or attorney of the adult and any other person who has an interest in the adult's well-being or property. This reflects the importance of providing information that may assist such persons to support or care for the adult. However adults who may be being harmed may be anxious about the information being shared with others.

7. When a person is considering the information to be shared, it is important to consider the adult's right to confidentiality in relation to their personal healthcare information (including medical details, treatment options, and wishes) before information is supplied. In particular, the relevant requirements of the regulatory body must be followed.

8. Whilst confidentiality is important, it is not an absolute right. Co-operation in sharing information is necessary to enable a council to undertake the required inquiries and investigations. Information should only be shared with those who need to know and only if it is relevant to the particular concern identified. The amount of information shared should be proportionate to addressing that concern.

What records may be examined?

9. Section 10 defines records as health, financial or other records relating to an adult at risk. This includes records held in audio, visual or other formats. The purpose of inspecting records should be to enable or assist the council to decide whether it needs to take any further action in order to protect the adult at risk from harm. The type of records to be inspected will therefore depend on the type of harm suspected and will need to be judged on an individual basis. Any information requested must be relevant. (For further information on adults at risk please refer to Chapter 1)

10. Health records may only be inspected by a health professional. In some cases it will be sufficient for a health practitioner to inform the investigation by providing a summary of his or her involvement with the adult and of the adult's physical or mental health, along with any relevant documents or reports. It should be noted however that Section 10 refers to existing records held by a professional or organisation rather than information created specifically to meet a request.

11. Where it is suspected that a criminal offence may have been committed, this should be reported to the police at the earliest opportunity.

Does the Act provide any safeguards for an adult?

12. Any person performing a function under the Act must take account of the principles. (For further information on the principles, please refer to chapter 1)

13. Records should be accessed and information shared only where disclosure will provide benefit to the adult which could not reasonably be provided without such an intervention.

Does an adult have to consent to disclosure?

14. When a person is considering accessing information, it is important to consider carefully the adult's right to confidentiality about their private medical details, finances or their wishes before such information is requested. Wherever possible, and insofar as practicable the adult's consent should be obtained.

15. However, it may not be possible to obtain consent where:

  • the adult lacks the mental capacity to consent;
  • the person acting as proxy with the relevant powers for an adult lacking capacity is unavailable or unwilling to give consent; or
  • the situation is so urgent that attempting to obtain consent would cause undue delay.

16. In the case of health professionals, the record holder must act in line with professional guidance. For example, guidance by the General Medical Council advises that doctors should inform their patients about such disclosures, wherever that is practicable.

17. Where the adult is incapable of consent, it would be good practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney may consent on their behalf. Where no guardian or attorney has such powers, consideration may be given to whether it is appropriate to use the provisions in the Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003.

Who may access and inspect records?

18. Section 10(4) allows for records given to the council officer to be inspected by the officer and any other person whom the officer considers appropriate in relation to the content of the records.

19. Section 10(5) provides that only a health professional can inspect health records. Section 10(7) defines health records as records relating to an individual's physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual.

20. The council officer or any other person whom the officer considers appropriate may determine whether records are health records. In the case of health records only a registered health professional (a doctor, nurse, midwife or other type of individual described by the Scottish Ministers) can be given the authority to inspect records or copies of records.

21. Good practice would be for each council to nominate persons of a suitable seniority to have authority to make decisions regarding accessing records on behalf of the council. This decision should be made in discussion with relevant bodies responsible for keeping records such as general practitioners.

How may records be accessed?

22. A requirement to provide records may be made by the council officer during the time of a visit to the person holding the records or at any other time. The council officer should be able to demonstrate to the record holder that they are authorised to access records. The council should have procedures in place, agreed with relevant bodies which hold records, for obtaining and verifying authorisation.

23. If a request for information is made at a time other than during a visit, it must be made in writing. If the requirement is transmitted electronically it will be treated as having been made in writing if it is received in a legible form and is capable of being used for subsequent reference.

24. Usually only the relevant parts of a record will be copied for access by the council officer. It is essential that copies of records are treated with the same degree of confidentiality as the original records. Good practice would be to discourage the use of original records.

25. It would be good practice for agreement to be reached with the record holder when records are obtained on how their records are to be treated. For example, whether copies of records should be kept for the minimum length of time necessary and then returned to the original record keeper or whether they should be destroyed.

Must the record keeper always comply with a request for access?

26. Section 49 of the Act provides that it is an offence for a person to fail to comply with a requirement to provide information under Section 10, unless that person has a reasonable excuse for failing to do so.

27. Councils should make reasonable efforts to resolve disagreements when record holders refuse to disclose them. Informal or independent conciliation might be considered, depending on the circumstances and reasons given for refusal.