First-tier Tribunal for Scotland Social Security Chamber and Upper Tribunal for Scotland (Rules of Procedure) (Miscellaneous Amendment) Regulations 2022: equalities impact assessment

Background

The General Medical Council's Guidance on Consent^[1] sets out that "in very exceptional circumstances" it may be appropriate for the non-disclosure of information to a patient if it would cause them serious harm. The guidance goes on to say that 'serious harm' means more than that the patient might become upset, decide to refuse treatment, or choose an alternative. In the context of individuals who are applying for disability assistance under Special Rules for Terminal Illness, the Chief Medical Officer's guidance for doctors and nurses completing the Benefits Assessment for Special Rules in Scotland (BASRiS) form for terminal illness^[2] also notes the limited exception of "serious harm" where it may be appropriate to withhold the information from the patient. The guidance states that harmful information is anything that would be considered to cause serious harm to an individual's mental and/or physical health if they were to become aware of it (e.g. a diagnosis of malignancy).

Under section 62A of the Social Security (Scotland) Act 2018, Scottish Ministers have powers for the non-disclosure of information to a recipient if it relates to the physical or mental health of an individual and if a registered medical practitioner or a registered nurse has advised Scottish Ministers that the information is likely to cause serious mental or physical harm to the recipient if disclosed. The recipient could be the patient or the parent/individual with legal parental responsibilities for a child. However, section 62A of the 2018 Act only applies to certain duties of the Scottish Ministers under the 2018 Act. Section 62A will not apply if the individual's case is appealed to the First-tier Tribunal or Upper Tribunal for Scotland.

There are no provisions in The First-tier Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 or The Upper Tribunal for Scotland (Social Security Rules of Procedure) Regulations 2018 to allow the First-tier Tribunal or the Upper Tribunal to prohibit the disclosure of a document or information to an individual if that information is likely to cause them serious mental or physical harm.

The aim of this policy is to mitigate the risk of a person seeing or hearing information during a social security appeal that could cause serious harm to their physical or mental health.

The approach is in line with Scottish Social Security principles to respect the dignity of individuals and the client's right to choose.