Need for Discretion – harmful information
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(2) and (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.
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 a terminal illness.
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.
An exception to this is that case managers can refer to the diagnosis with a third party who is reporting a terminal illness diagnosis on behalf of the individual.
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 the client with any questions about their diagnosis to the RMP or RN who provided the clinical judgement. Tell the RMP or RN that the client has raised the issue so they can prepare for their patient contacting them.
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 RMP or RN has advised either the Tribunal, or one or 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.
Example: harmful information has been withheld
Agatha’s award has transferred from DLA to Scottish Adult DLA. Her daughter Fiona tells Social Security Scotland that Agatha is now terminally ill but she does not know this. Her clinician has withheld the information from Agatha because they believe it would be harmful for her to know this.
A Social Security Scotland practitioner contacts the RMP/RN named by Fiona to ask them whether Agatha meets the terminal illness definition and whether a BASRiS form is appropriate.
The practitioner also establishes whether the RMP/RN has withheld information from Agatha because they have determined it would be likely to cause serious harm to her mental or physical health.
The RMP/RN sends a BASRiS form which confirms that Agatha does not know she is terminally ill because the RMP/RN has withheld this information from her. When communicating with Agatha, Social Security Scotland makes no reference to terminal illness, special rules or to the BASRiS form so as not to reveal to Agatha that her condition is terminal.
Example: Query from an individual where an award has changed but harmful information has been withheld
An individual, aged 55, contacts Social Security Scotland to ask why their payments have increased. They were previously receiving the care component of Scottish Adult DLA award at the lowest rate and the lower rate of the mobility component.
A RMP/RN has sent Social Security Scotland a BASRiS form confirming that the individual is terminally ill, but they are unaware of this. The RMP/RN tells Social Security Scotland that it would be harmful to the individual to know they are terminally ill.
The Case Manager completed a determination without application and determined that the individual meets the criteria to receive the highest rate of the Scottish Adult DLA care component under special rules.
A new award was issued to the individual by Social Security Scotland, confirming the change of entitlement. The award notification makes no reference to special rules.
The Case Manager speaks to the individual and advises that a change in condition has led to a change in payment. The Case Manager can refer the individual to speak with the RMP or RN who provided further information about their condition. The Case Manager makes no reference to terminal illness, special rules or the BASRiS form. They can then contact the RMP or RN to let them know their patient may be in touch for more information about their condition.