Memorandum of Procedure on Restricted Patients

ANNEX A PATIENT CONFIDENTIALITY AND INFORMATION SHARING

Confidentiality of personal health information is the cornerstone of the patient/doctor relationship. Restricted patients are entitled to the same rights to confidentiality as any other patient. Nevertheless, sharing of information between agencies involved in the care and treatment of restricted patients is an essential part of risk management. When a patient is admitted into the mental health system, the RMO will receive details of their index offence and any previous medical or social circumstances reports. Additional intelligence on the patient's background, mental disorder and risk will begin shortly after admission and will continue to be gathered throughout their stay in hospital and will be used to inform the decision-making process at key stages in their rehabilitation, e.g.SUS, transfer and discharge. Where appropriate, consideration should be given to explaining to the patient what information is being shared, who with and why. The CPA form has been produced in order that only the relevant risk information is shared with the police and MAPPA ensuring the confidentiality of clinical information.

While all health professionals have a legal duty to provide confidential health care, the statutory provisions ¹²¹ which govern this allow the sharing of information in appropriate circumstances to protect the public or to prevent or detect crime - see the NHS Code of Practice on Protecting Patient Confidentiality ¹²². The Codes of Conduct and associated guidance of health professional bodies similarly recognise the importance of promoting the public interest in the prevention and detection of crime through the appropriate sharing of information with the police and criminal justice system.

Release of information to Third Parties

There may be times when a restricted patient's supervisor needs to consider the release of information about the patient to a third party such as a potential landlord.

Guidance on handling personal health information rests on the Code of Practice on Protecting Patient Confidentiality, issued to the NHS in Scotland, in 2003. ² The Code sets out the main principles that have to be followed by all NHS staff. The overriding principle of the Code is that information about the health and welfare of a patient is confidential in respect of that patient and such information should not be disclosed to other persons without the consent of the patient, except in certain well-defined circumstances. These are:

• where disclosure is in the wider public interest;
• where disclosure is necessary to prevent serious injury or damage to the health of a third party;
• where disclosure is in the best interests of the patient.

It is for the health professional with overall responsibility for clinical care for the patient to determine in each case whether the circumstances described outweigh the rights of a patient to confidentiality.

In reaching a decision, all relevant circumstances should be taken into account including advice from the MHO and other members of the multidisciplinary team, the need to protect the public and any rights of the patient to have confidentiality of personal information about him or her protected. While it is essential for each case to be considered in the light of its own facts, the need to protect the public means that the balance may come down in favour of disclosure. Where a decision is made to disclose personal information, only the minimum information necessary to protect the public interest should be divulged. Care should also be taken that the information is relayed to the appropriate person in the receiving body, for instance, a police/hospital liaison officer, to ensure that its handling adheres to the requirements of the Data Protection Act 1998.

Information in the public domain or a matter of public record is not subject to the duty of confidence.

Management of Offenders etc (Scotland) Act 2005

Full guidance on Multi Agency Public Protection Arrangements (" MAPPA") including guidance on the NHS Roles and responsibilities was issued in CEL (2007) 8 (Justice Directorate Circular 15/2006 - version 3 - as revised at September 2007) ¹²³.

As part of this duty, these agencies are required to:

• Establish joint arrangements for the assessment and management of the risk posed by restricted patients who are violent or sexual offenders
• Cooperate with each other and other "duty to cooperate" agencies.

In each local authority area, agencies must draw up a memorandum setting out the ways in which they will cooperate with each other.

MAPPA are all the processes that are in place to manage risk posed by offenders. MAPPA meetings are primarily to ensure that there is oversight of the management of the most concerning cases and that operationally risk is being assessed and managed appropriately.

Health Boards will be expected to have an appropriate Information Sharing Protocol ( ISP) in place. Where health boards already have an ISP in place they will review to include an annex for MAPPA arrangements. The following basic principles should be used as a benchmark for management and treatment of restricted patients:

• All individuals should be treated with respect. Lack of respect and stigmatisation may increase the risk of an individual re-offending;
• Wherever possible, individuals should be asked for consent to share information about them. Wherever possible an individual's requests to keep particular information confidential should be respected provided it is not essential to assess risk;
• The level of risk in these individuals may change with circumstances. Staff should be vigilant for triggers such as alcohol, opportunity, etc;
• All individuals are likely to require information-sharing on a need-to- know basis, depending on the risk they present.
• Plans should include specific plans about information - sharing, who will be responsible and how this will be done;
• Each Health Board area should appoint MAPPA representatives (both managerial and clinical may be necessary) and should make local arrangements to ensure best practice.
• These persons should be available to give advice to other staff on risk, and coordinate all sources of information within Health; cover for this will be needed 24/7.

Concordat on sharing of information regarding sex offenders

The Concordat for sharing information on sex offenders stemmed from the work of the Expert Panel on Sex Offending. The Panel recognised that a large number of agencies including the police, prosecutors, courts, prison service, criminal justice social work, as well as housing, health and education authorities play a role in managing the risk posed by sex offenders. The Concordat provides a framework for information sharing and joint working and can be accessed via Concordat on the Sharing of Information on Sex Offenders

Information Sharing Between NHS Scotland and the Police

The Scottish Government has provided guidance in CEL 13 (2008)¹²⁴ developed with the Association of Chief Police Officers Scotland. This guidance sets out how NHS Boards should work with the Police Forces in their area to develop procedures which will ensure that health professionals employed or contracted by them have the training and support necessary to balance their responsibilities for patient confidentiality with their wider public protection duties.

Other useful points of guidance on sharing of information may also be obtained from:

The National Concordat: Sharing Information On sex Offenders - http://www.scotland.gov.uk/Publications/2005/10/27174205/42063

The Management of Offenders etc (Scotland) Act 2005 - http://www.opsi.gov.uk/legislation/scotland/acts2005/asp_20050014_en_1

Data Protection Act 1998 - http://www.opsi.gov.uk/Acts/Acts1998/ukpga_19980029_en_1

ICO Data Protection Guide: 2009

http://www.ico.gov.uk/for_organisations/data_protection_guide.aspxICO Framework Code of practice for Sharing Personal Information: 2007

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/pinfo-framework.pdf

Data Protection Act 1998 Legal Guidance - published by the Information Commissioner and available from the Commissioner's website www.informationcommissioner.gov.uk

Human Rights Act 1998 - http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_1

Guidance and Information Material on the Human Rights Act - http://www.scotland.gov.uk/Topics/Justice/Civil/17838/10722

CEL(2007) 7 - Implementation of the Multi-Agency Public Protection Arrangements ( MAPPA) in relation to Registered Sex Offenders required by Sections 10 And 11 of the Management of Offenders etc (Scotland) Act 2005 http://www.sehd.scot.nhs.uk/mels/CEL2007_07.pdf

NHS Code of Practice On Protecting Patient Confidentiality - http://www.ehealth.scot.nhs.uk/wp-content/documents/nhs-code-of-practice-on-protecting-patient-confidentiality.pdf

CEL 13(2008) Information Sharing Between NHS Scotland and the Police - http://www.sehd.scot.nhs.uk/mels/CEL2008_13.pdf

Data Sharing: Legal Guidance For the Public Sector - http://www.scotland.gov.uk/Publications/2004/10/20158/45768

Information to Victims of Mentally Disordered Offenders ( MDO)

The current Victim Notification Scheme ( VNS) does not apply to victims of MDOs but, where the court disposal is a Compulsion Order and Restriction Order ( CORO) or Compulsion Order (without a Restriction Order), the Crown Office and Procurator Fiscal Service, Victim Information and Advice ( VIA) Team provide victims with contact details if they require more information about these disposals.

Where the MDO is subject to a CORO, VIA advise the victim that they can contact the

or call 0131 244 2510.

The SGHD will provide them with information about what the CORO means; and also advise them of the Tribunal's decision making role and contact information for the Tribunal if they wish to receive more information about what the Tribunal Rules say about entering the proceedings of a case.

Where the MDO is subject to a Compulsion Order (without a Restriction Order) VIA advise the victim that they can contact:

or call 0800 345 7060.

The Tribunal will provide them with information about what the Tribunal Rules say about entering the proceedings of a case where the Tribunal has a decision-making role.

Future Provision of Information to Victims of MDOs

The SGHD is looking at extending the current VNS legislation to include provision of certain information to victims of MDOs. Any changes made to the current legislation would need to be approved by the Scottish Parliament. Please contact the SGHD on 0131 244 1822 or mentalhealthlaw@scotland.gsi.gov.uk if you require further information.