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. 62(A)(3)) 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. Read Withholding Harmful Information – SRTI Operational Guidance.

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 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. Read Withholding Harmful Information – SRTI Operational Guidance.

Where harmful information is withheld, refer any questions about diagnosis to the RMP or RN who provided the clinical judgement. See process maps.

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,
• 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.