Need for Discretion and to withhold ‘harmful information’

An individual may be terminally ill and not aware of their condition. A registered medical professional (RMP) or registered nurse (RN) may decide not to tell an 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.3 This is referred to as harmful information. If a representative of a client has told us that the client is terminally ill, or a client has told us that the person they care for is terminally ill, and a client adviser becomes aware that a medical professional has withheld this information from the terminally ill person, Social Security Scotland must not disclose this information to the individual. Alternatively, if the RMP or RN has identified the information as needing to be withheld from a specific family member then Social Security Scotland must not disclose this information to that family member (Social Security (Scotland) Act 2018, s. 62A(1)).

It will be rare that a RMP or RN withholds harmful information from an individual so this will likely affect only a small number of individuals who are terminally ill. 

Client advisers 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 client advisers can refer to the diagnosis with a representative of the client who has contacted us on their behalf about their terminal illness, for example if a client adviser has contacted them about a client’s application for Carer Support Payment not meeting the ‘past presence test’. 

If an individual refers to themselves as being terminally ill and you know that information has not been withheld you can acknowledge this.  

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 direction4

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.