67. The key principles when developing a communication and information strategy for effective risk management are:
to achieve a balance between the rights of people with a mental illness and the necessary disclosure of relevant confidential information with the consent of the individual involved (or otherwise in certain specified circumstances);
consideration of individual or public safety provide an exception to the otherwise absolute rule of professional confidentiality;
that individuals working in any agency should have a clear understanding of their own roles and responsibilities;
that confidential information should only be shared on an explicit need to know basis, with the knowledge of the person involved;
that judgement about another's 'need to know' must be informed by an assessment of the likelihood of an increased risk that might be incurred if the information is not passed on.
that organisations too have a duty to set down an explicit framework to guide staff members in collaboration with partner agencies;
that professionals should be aware of their own personal responses to situations in order to avoid hasty assumptions or value judgements about an individual.
68. The Caldicott Committee19 was set up to review all patient-identifiable information passing from NHS organisations in England to other NHS and non NHS bodies for purposes other than direct patient care, medical research or where there is a statutory requirement for information. The NHS in Scotland has accepted the principles of the Caldicott Report. Other organisations contributing to mental health services are reviewing and developing policies in this area.
The Caldicott Principles
Principle 1: Justify the purpose(s), (of the use or transfer of patient identifiable information).
Principle 2: Do not use patient identifiable information unless it is absolutely necessary.
Principle 3: Use the minimum necessary patient identifiable information.
Principle 4: Access to patient-identifiable information should be on a strict need-to-know basis.
Principle 5: Everybody should be aware of their responsibilities.
Principle 6: Understand and comply with the law.
69. A key recommendation of the Caldicott Report adopted throughout the NHS in Scotland was the establishment of a network of Caldicott Guardians. Boards and Trusts must assist by developing the appropriate framework within which they will operate, including the development of protocols with partner organisations to govern the disclosure of patient-related information.
70. A Guardian will be a senior and experienced health professional, a member of the management board or an individual with responsibility for promoting clinical governance in the organisation. Guardians will be responsible for development of internal policies which are compliant with the Caldicott principles and protocols with partner organisations which will underpin the development of cross boundary working and current policy initiatives flowing from 'Designed to Care'5 and 'Modernising Community Care - An Action Plan'20.
71. The Health Department is also addressing the need for national guidance on sharing of information between health and other agencies.
72. However, for mental health services issues of confidentiality and information exchange have moved from the relatively closed world of the NHS into the more open world of the community where there is a complex pattern of partnerships between a wide variety of services and agencies.
Mary was referred to the project by the NHS Trust. During the assessment period every effort was made by project staff to gather all relevant information regarding Mary's history and presenting problems.
Shortly after joining the project Mary appeared to develop problems including difficulty sleeping and apparent suicidal ideation. Project staff regularly informed social workers and hospital staff who continued to maintain contact during the assessment period. Reassurances were given that Mary's difficulties were a result of resettlement and would settle in time. After a period of a couple of weeks the situation deteriorated. Mary appeared quite unwell, began to state a desire to harm others and demonstrated threatening behaviour.
Project staff contacted the duty doctor at the hospital who advised that Mary should take medication prescribed and if the situation did not settle within an hour, return to the hospital for an assessment. However, no beds were available and Mary eventually returned to the flat and slept. The following morning project staff contacted the hospital. The hospital felt the client's CPN would be best placed to deal with the situation. After numerous attempts to contact the CPN a visit was arranged to the CPN's office by Mary, accompanied by project staff. On arrival and after some delay the staff were informed that the CPN would not see Mary until a colleague arrived as the CPN felt Mary presented a risk. The project staff had not been informed of the existence of risk and were further surprised when asked if Mary's flat or person had been checked for knives. When asked to elaborate, the CPN refused, reasoning that the information was confidential, despite the fact that the project staff had assumed responsibility for Mary's care.
Mary was eventually assessed and admitted to hospital under the provisions of the Mental Health (Scotland) Act 1984.
At a debriefing meeting the social work department advised that they had not been informed of the risk identified by the CPN. The CPN refused to attend the meeting and subsequently refused to provide written information on the incident on the basis of confidentiality.
The project refused to accept the client again until they were in full possession of all relevant information. Mary's consultant psychiatrist eventually instructed the CPN to disclose all information and the situation was reviewed.
73. Given that a person with a severe and/or enduring mental health problem may come into contact with over 100 members of staff of different organisations in a 10 year history of comtact, it can be seen that questionsof confidentiality and the need for respect and privacy may be paramount in a service user's mind. Hitherto, the practice has been that information should not be given to a third party unless informed consent of the patient has been given, unless disclosure is required by statute or by a court, or if the disclosure is in the public interest, to prevent an identifiable harm from occurring.
74. While risk assessment should be a shared responsibility between relevant professionals, it should not be a negative process which results in the loss of autonomy and choice for the service user or patient. To reduce the possibility of the process seeming to be oppressive and unfair, it is important that from the beginning of their contact with the service, individuals take an active central role in the assessment and utilisation of their strengths. This will highlight the contributions they can make to reduce the likelihood and seriousness of the potential harm identified.
75. It is becoming clear that both the process of community care and the European Convention on Human Rights (Appendix B) are posing major challenges to practice deriving from traditional concept of confidentiality. However, different professional organisations and the courts may respond from a fixed or dated perspective, leaving the individual staff member exposed. Given that failure to pass on information about potential risk can contribute to an increase in overall risk in clinical psychiatry, it is important that the individual worker is supported within his or her organisation in following a generally acceptable standard of practice. This is central to multi-agency working and the containment of risk. If necessary the organisation should be prepared to support the individual before the courts.
General Medical Council Guidance for Doctors - Principles of confidentiality
Patients have a right to expect that you will not disclose any personal information which you learn during the course of your professional duties, unless they give permission. Without assurances about confidentiality patients may be reluctant to give doctors the information they need in order to provide good care. For these reasons:
76. These principles apply in all circumstances.
United Kingdom Central Council Guidance for Nurses
As a registered nurse, midwife or health visitor, you are personally accountable for your practice and, in the exercise of your professional accountability, must protect all confidential information concerning patients and clients obtained in the course of professional practice and make disclosures only with consent, where required by the order of a court or where you can justify disclosure in the wider public interest. (UKCC Code of professional conduct, clause 10).
Professional practice is based upon developing a therapeutic relationship with your clients. Confidentiality within this relationship should only be broken under exceptional circumstances and only after careful consideration leading to a conclusion that this can be justified.
When working with clients, a clear standard of confidentiality should be explained to them and documented at the first point of contact. This will ensure that the client agrees that some information may be made available to others involved in their care.
77. The development of electronic recording of patient-identifiable information, and the risk of data bases accumulating sensitive information with poor controls over access has led to the formulation of principles and the development of protocols. These are complex issues and a full discussion is not appropriate here. The advance of information systems and the Caldicott requirements will affect more and more services. For a fuller discussion see Anderson (1996).21
78. We all belong to a number of social groups, a characteristic of which is the mutual sharing of gossip or information about each other's activities. Factual or not this has an important function in making each individual a little more predictable on a day-to-day basis in his or her reactions.
79. Professionals attempting to assess an individual, and determine the degree of risk posed, need essential access to this informal information. Demanding access as a professional right is likely to be resisted; instead a more informal shared process has to be established with family, friends, advocates and other important individuals.
80. Understanding risk comes from a discussion about an individual service user's immediate needs, an analysis of the likely consequences of their actions and what might happen if those needs are not met.
81. This discussion should be based on the 3 principles of respect for the individual, empathy and personal warmth. As these principles are by themselves insufficient, corroboration is the key to a solid foundation of the assessment. Risk often cannot be assessed without some challenge to the person's account, some clearing up of inconsistencies in the story and a degree of caring scepticism. It is a process which is analytic, objective, and open, rather than one which is secretive, intuitive and opaque. Some individuals may pose a risk which is quite unpredictable.
82. The point of this process is to reach a common understanding about risk factors, to decide on the likelihood of the individual's coping ability being able to meet each specific risk and the responsibility of those around to address any discrepancy.
83. A formal written record must be made of the steps followed in the risk assessment process, and the information obtained and verified, carefully documented. Because risk varies from day to day, those involved with an individual should see themselves as being part of a responsible and responsive network, forward looking, open to new evidence and changing its plans and actions accordingly.