Child Disability Payment decision making guide
Need for Discretion
A medical professional may decide not to tell the individual that they are terminally ill or other information relating to their condition. They will only withhold this information if they have decided that telling the individual would be likely to cause serious harm to their physical or mental health (SS(S)A 2018, s. 62A(1)). This is referred to as harmful information. In these situations Social Security Scotland must not disclose this information to the individual. If the RMP or RN has specifically identified the information as needing to be withheld from a family member then Social Security Scotland must not disclose this to that family member.
It will be rare that a medical professional withholds harmful information from an individual so this will likely affect only a small number of individuals who are terminally ill.
Case managers must not in any circumstances mention to the individual or anyone else that the individual:
- is terminally ill
- has a diagnosis of terminal illness
An exception to this is that case managers can refer to the diagnosis with a third party who is making the SRTI part of the application on behalf of the individual. An example where this could be necessary is if the third party is completing the application with a case manager over the phone.
This is because:
- the individual, their parent, guardian or appointee might not know the individual is terminally ill
- knowing about a terminal illness diagnosis could cause the individual serious harm or distress
However if an individual refers to themselves as being terminally ill and you know that information has not been withheld you can acknowledge this.
Where harmful information is withheld, refer any questions about diagnosis to the RMP or RN who provided the clinical judgement.
During a social security appeal, the First-tier Tribunal or the Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person (“the recipient”) if:
- the document or information relates to the physical or mental health of a person,
- a registered medical practitioner or a registered nurse has advised either the Tribunal, or one of more of the parties, that disclosure of the information is likely to cause serious harm to the recipient’s, or some other person’s, physical or mental health,
- the Tribunal is satisfied that disclosure of the harmful document or information would be likely to cause serious harm to the physical or mental health of the recipient or some other person, and
- The Tribunal is satisfied that it is in the interests of justice and proportionate to give such a direction (The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018, Schedule, para 14(2)-(6); The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018, Schedule, para 17(2)-(6))
See the chapters on Appeals to the First-tier tribunal and Appeals to the Upper Tribunal for more information about how the Tribunal can issue such a direction.
Janosch’s parent has applied for CDP on Janosch’s behalf but does not tell Social Security Scotland that the child has a terminal illness. Janosch’s grandparent tells Social Security Scotland that:
- the parent does not know that the child is terminally ill and
- it would be harmful for the parent to know their child is terminally ill
A Social Security Scotland practitioner contacts the RMP or RN named in the application to ask them whether Janosch meets the terminal illness definition and a BASRiS form is appropriate.
This includes establishing whether the RMP or RN has withheld any information from the parent because they have determined it would be likely to cause serious harm to their mental or physical health.
The RMP or RN sends a BASRiS form which confirms that the parent does not know that their child is terminally ill because the RMP or RN has withheld this information. Social Security Scotland communicates with the parent who applied for CDP making no reference to terminal illness.