Disclaimer: These notes are for guidance only. We cannot be held responsible for any action taken as a direct result of information contained herewith. we would always recommend that expert legal advice is sought. Please see our introduction page for more information.
Case Study 1
A Youth Offending Team Health Worker is asked to attend a MAPPA meeting regarding one of her clients, whom she knows that whilst in a YOI he had symptoms of psychosis and reacted with physical violence violently when confronted by female members of staff. At the meeting, no one from the YOI is there and the rest of the group do not appear to be aware of these factors. It is being proposed that the young man is placed in a nearby hostel, which she knows is mainly staffed by women. However, she has not had the patient’s permission to tell anyone about his clinical condition and is scared that she will get into trouble if she does, so she just keeps quiet. Do you think she was right? What do you think she should do?
Answer
As always, there is no clear cut solution. If she does not warn partner organisations of the very real risk posed by the young man, she could be failing in her public protection duties. Whilst the data on the young man’s clinical condition and his past behaviour are clearly sensitive and personal, it may be in the interests of the staff in the hostel to know how he might react to circumstances, so that they can develop strategies to cope with his reactions. It could also be that he currently lacks capacity to consent to disclose details of his condition and that it is in his personal interests to do so, so that his new carers are able to manage his behaviour so that he gets appropriate care and avoids further trouble.
Depending on the period of time before he is placed, she could inform the meeting that she is aware of information known to health care staff at the YOI that may be pertinent to the placement of this young man and suggest that a decision be postponed until this information can be obtained and weighed. Alternatively, should there be an urgent requirement to make a decision, for example if release is imminent then consideration should be given to whether there is an overriding public interest necessitating immediate disclosure. If this is the case, the YOT worker should disclose only sufficient details to enable the management of the hostel to cope with the young man and should record very clearly in his notes what she has disclosed and the considered reasons for doing so.
The Criminal Justice Act 2003 sections 325 - 327 places responsibility on certain organisations, including health, to cooperate with the ’Responsible Authority’ under the MAPP arrangements. It includes the representatives of ‘duty to cooperate’ bodies sharing information about certain offenders. Section 325 (3) of the Act places a duty to cooperate in setting up MAPP arrangements, which includes (4) the possible inclusion of information sharing. 325 (6a) identifies Youth Offending Teams as one of the authorities required to cooperate.
Case Study 2
The Governor of a prison is concerned that too many prisoners are missing work because they are attending recently introduced relaxation classes and asks the healthcare manager for a weekly list of those attending. The healthcare manager refuses on the grounds that this is personal and sensitive information. Is she right to do so?
Answer
Yes but as always, there is no easy answer. The fact that they are attending relaxation classes implies that they may be suffering from anxiety of some form, which could be interpreted as data referring to their mental health and therefore subject to the common law duty of confidentiality and Data Protection Principles and not disclosed unless conditions from both Schedule 1 and 2 are met. Unless there are overriding reasons for disclosure based on the risks an individual might pose, the list should not be disclosed. However, a properly anonymised list of numbers attending could be provided and efforts made to reassure the Governor that prisoners are not abusing the system.
Frequently asked questions (FAQs)
Q: Can I share information on a patient with other health colleagues?
A: Yes, on the basis of implied consent, providing that this is only amongst those who provide that patient’s care and is applicable to that care. It would only be right, say, to share the information that a woman had had an abortion in the past with a team responsible for her gynaecological or obstetric care and in some circumstances, those responsible for her mental health.
Q: I have had a request for copies of confidential medical information (for one of my patients) from an outside agency; can I release this information to them?
A: All medical information is protected by the Data Protection Act 1998 from disclosure, and normally also by the common law duty of confidentiality unless there are legal exemptions. You would need to satisfy the common law duty of confidentiality and at least one of the requirements in Schedule 2 of the Act and one from Schedule 3 if this was not the case.
Q: What impact has the implementation of the Data Protection Act, on professional practice?
A: The Act applies to all personal and sensitive personal data and therefore has major implications for any public servant dealing with such data. Personal and sensitive data should not be processed without the persons consent unless there are legal requirements to do so or an assessment has been made that it is in the person’s best interests or in the public interest to do so.