21_Semple_Chap21.indd 886 12/7/2012 4:33:33 PM MENTAL HEALTH ACT: SCOTLAND 1 887 Responsible medical of \201 cer (RMO) The registered medical practitioner in charge of the patient \200\231s treatment, usually the consultant. Mental health of \201 cer (MHO) A so cial worker, with the necessary regis- tration, experience, education, training, and compet ence in dealing with individuals with mental disorder; appointed under section 32 of the Ac t. Designated medical practitioner (DMP) Medical practitioners appointed by the MWC to give second opinions regarding the medical treatment of patients subject to compulsion. Care pl an A document that sets out the care, treatment, and services that it is proposed that a pa tient subject to compulsion should receive. It will include compulsory and non-compulsory m easures. Named person Someone nominated by a person under section 250 to support them and p rotect their interests. Entitled to be informed about certain decisions and to act on the p atient \200\231s behalf in certain circum- stances. If one has not been nominated then it i s the primary carer or nearest relative. For a child under 16 it is a parent. Advance state ment May be made under sections 275 and 276. When making this the person must have capacity and must make it in writing with a witness. Those carrying out duties under the Act must \200\230have regard to the wishes speci \201 ed in the advance statement \200\231. If acti ng against these wishes this must be recorded in writing with reasons, and a copy of this r ecord must be sent to patient, named person, welfare attorney, guardian, MWC. Advocacy Unde r section 259 every person with mental disorder has right of access to independent advocacy , and it is the duty of local authority and health board to ensure availability of this. Me ntal Health Tribunal for Scotland (MHTS) The legal forum for making decisions regarding app lications for certain compulsory orders, propos- als to amend compulsory orders, and appeal s against compulsory orders. Consists of three members: one legal, one medical and one lay. Mental Welfare Commission (MWC) Similar to the MHAC for England and Wales but has wider re mit and powers. Criteria for compulsory intervention Less stringent for emergency and shorter-term measures (i.e. parts 5 and 6) than they are for longer-term measures (i.e. part 7). The criteria fo r compulsion under a part 7 compulsory treatment order (CTO) are: \200 \200 The person has a mental disorder. Medical treatment is available which would be likely to p revent that disorder worsening or be likely to alleviate the effects of the disorder. There would be a signi \201 cant risk to the patient \200\231s health, safety, or welfare, or t o the safety of another person if such treatment were not provided. The patient \200\231s a bility to make decisions about the provision of medical treatment is signi \201 cantly imp aired because of their mental disorder. The making of the order is necessary. For short-term (part 6) or emergency (part 5) detention it only has to be likely that the c riteria apply, and the second criterion above regarding treatability does not need to be co nsidered. 21_Semple_Chap21.indd 887 12/7/2012 4:33:33 PM CHAPTER 21 Legal issues 888 Mental Health Act: Scotland 2 Compulsory measures The main compulsory orders are set out under part 5 (emergency deten- tion), part 6 (short- term detention), and part 7 (compulsory treatment order). Emergency detention Under part 5, section 36, any fully registered medi- cal practitioner m ay grant an emergency detention certi \201 cate (EDC) author- izing the detention of a per son in hospital for 72 hrs. Consent from an MHO is necessary (unless impracticable), the si tuation must be urgent and such that making arrangements for short-term detention under par t 6 would involve \200\230undesirable delay \200\231. There are no separate procedures for inpatients and outpatients. As soon as practicable the patient should be assessed by an AM P to determine if detention under part 6 should be applied or if the patient should be deal ed with informally. Nurses \200\231 holding powers (section 299) may be used for up to 2hrs and continue for 1h r after the doctor has arrived. Short-term detention Under part 6, section 44, any AMP may grant a Short Term Detention Ord er (STDO) authorizing the detention of a per- son in hospital for 28 days. Consent from an MHO is necessary in all cases. At the end of the order the patient may be discharged, remai n as an informal patient, or may be placed on a CTO. Compulsory treatment order (CTO) Under part 7 an application may be made to the MHTS for a patient to be made subject to a CTO authorizing compulsory treatment in hospital or in the community for 6mths. The application is made by an MHO and has three components: two medica l reports (one by an AMP and the other by the patient \200\231s GP or another AMP), a repor t prepared by the MHO, and a proposed care plan (pre- pared by the MHO in consultation with the RMO and others who will be involved in the care and treatment of the patient). The MHT must be satis \201 ed that the criteria for a CTO are met; if there are issues tha t require clari \201 cation the MHT may grant an interim com- pulsory treatment order inst ead. A CTO in the community may make requirements as to residence, attendance for treatment and other serv- ices, access of staff to the patient \200\231s residence, and acceptance o f medica- tion for mental disorder. A CTO may be renewed for 6mths, then annually thereafte r, without further application to the MHTS unless some variation to the order is proposed. If a patient on a community-based CTO refuses medication then they may be taken to hospital and detained there for up to 6hrs to receive this. If the patient is non-compliant with ot her aspects of the order, then deten- tion in hospital for up to 72hrs can be authorized by the RMO; this may be extended by a further 28 days with the approval of the RMO and MHO to allow an assessment as to whether an application should be made for the CTO to be varied. 21_Semple_Chap21.indd 888 12/7/2012 4:33:33 PM MENTAL HEALTH ACT: SCOTLAND 2 889 Treatment of patients subject to compulsion (part 16) \200 A patient subject to compulsion (except under emergency provisions) may be given medication for mental disorder for up to 8wks, whether they consent and/or have capacity or not. Pati ents in the community cannot be given medication using physical force. Medication for over 2mths requires the patient \200\231s consent or, if the person refuses or is incapable of c onsenting, authorization by a DMP. ECT may only be given if a patient can and does consent, or \200\224if incapable of consenting \200\224with the authorization of a DMP. ECT cannot be given, even in an emergency, to a patient with capacity who refuses. Treatment that is w ithout consent or a second opinion; this may be used for giving ECT to severely ill and at- risk patients lacking capacity while awaiting a second opinion and for giving medication to acutely disturbed patients on emergency detention. To receive neurosurgery for mental diso rder there must be an independent opinion from a DMP that the treatment will be bene \201 cial, two opinions from lay people appointed by the MWC that the person has capacity and co nsents, or if they do not have capacity, that they do not object. If the person is incapabl e but is not objecting, the treatment must be authorized by the Court of Session. urgently necessary may be authorized by the RMO Leave, absconding, and transfer Procedures allow for \200\230suspension of detention \200 \231 of patients detained in hos- pital so that they may leave hospital; the taking into cu stody and return of patients who abscond either from hospital or the residence speci \201 ed in a community-based CTO; and for patients to be transferred to other hospitals. Review A patient or their named person may appeal to the MHTS against being subject to a CT O or short-term detention (but not emergency detention), against transfer to another hospit al, and against being held in conditions of excessive security. This may happen once during each renewed period of compulsion for CTOs. An RMO must refer a case to the MHTS if a vari - ation is proposed in an order (e.g. from a community-based to hospital- based order). The MWC may also refer cases to the MHTS. If the MHTS has not reviewed a case for 2yrs then it must do so without a speci \201 c referral being made. The MHTS must cancel an order if t he criteria for compulsion are no longer met. The RMO and MWC also have the power to cancel an order at any point if these criteria are no longer met. Mental Welfare Commission The MWC has a statutory duty to protect individuals with mental d isor- der whether they are liable to detention or not. It also has the power to discharge p atients subject to compulsion. It has a responsibility to visit and inspect services and th e power to conduct enquiries into de \201 ciencies in care. It has new duties to monitor t he operation of the Act and promote best practice. 21_Semple_Chap21.indd 889 12/7/2012 4:33:33 PM CHAPTER 21 Legal issues 890 Mental Health Act: Northern Ireland 1 Introduction The Mental Health (Northern Ireland) Ord er 1986 sets out the mental health provisions for Northern Ireland. The Bamford review of M ental Health and Learning Disability reported in August 2007 and proposed comprehensive ref orm of mental health legislation and the introduction of incapacity legislation. De \201 nition of mental disorder Article 3 de \201 nes \200\230mental disorder \200\231 as meaning \200\230mental illness, mental handicap and any other disorder or disability o f mind \200\231. There are further de \201 nitions of types of mental disorder: \200 Mental illness de \201 ned as \200\230a state of mind which affects a person \200\231s th inking, perceiving, emotion or judgment to the extent that he requires care or medical trea tment in his own interests or the interests of other persons \200\231. de \201 ned as a st ate of arrested or incomplete Mental handicap development of mind which includes signi \201 cant impairment of intelligence and social functioning \200\231. Severe mental handica p development of mind which includes severe impairment of intelligence and social functioni ng \200\231. de \201 ned as \200\230a state of arrested or incomplete Severe mental impai rment development of mind which includes severe impairment of intelligence and social funct ioning and is associated with abnormally aggressive or seriously irresponsible conduct on t he part of the person concerned \200\231. de \201 ned as \200\230a state of arrested or incomplete The following are excluded if they are the only \200\230conditions \200\231 present: per- sonality disorder, promiscuity or other immoral conduct, sexual deviancy, or dependence on alcohol or drugs. Other de \201 nitions Mental Health Review Tribunal for Northern Ireland (MHRTNI) Legal fo rum to which a patient or a nearest relative can appeal against detention. The MHRTNI has 3 members: a legally quali \201 ed chairperson, a medical practitioner, and a lay member. I t must discharge a patient if the criteria for detention no longer apply. Mental Health Commission for Northern Ireland (MHCNI) Like the MWC in Scotland, has broader remit than the MHAC in England and Wales. Appointed doctor The MHCNI appoints medical practitioners for the purposes of Part II (comp ulsory admission to hospital and guardianship). These doctors are analogous to approved doc tors in England and Wales. Doctors may also be appointed for the purposes of Part IV (conse nt to treatment). The term \200\230appointed doctor \200\231 on these pages is used to ref er to Part II. Responsible medical of \201 cer (RMO) The registered medical practitioner in charge of the patient \200\231s treatment, usually the consultant. 21_Semple_Chap21.indd 890 12/7/2012 4:33:33 PM MENTAL HEALTH ACT: NORTHERN IRELAND 1 891 Approved social worker (ASW) A social worker who has undergone speci \201 c training and a ssessment and is appointed for the purposes of the Order as having competence in dealing wi th individuals with mental dis- order. Nearest relative The person caring for the patient who is \201 rst on the following list (article 32): spouse, child, parent, brother or sister, grandpar- ent, grandchild, uncle or aunt, nephew or niece. If there was no carer, then the \201 rst person on the list is th e nearest relative. If two relatives are of equal standing then the elder prevails. Criteria for compulsory intervention The criteria for compulsory intervention are less stri ngent for emergency and shorter-term measures (i.e. articles 4 and 7(2)) than they are for longer-term measures (i.e. article 12). The criteria for compulsion under article 12 are: \200 The patient is suffering from mental illness or severe mental impairment of a nature or deg ree which warrants his detention in hospital for medical treatment. Failure to so detain th e patient would create a substantial likelihood of serious physical harm to himself or to o ther persons. Consideration has been given to whether other methods of dealing with the pat ient are available and to why they are not appropriate. For article 4 the type of mental disorder does not need to be speci \201 ed, and for artic le 7(1) it must appear that the article 4 criteria are met. 21_Semple_Chap21.indd 891 12/7/2012 4:33:34 PM CHAPTER 21 Legal issues 892 Mental Health Act: Northern Ireland 2 Compulsory measures Article 4 allows detention in hos pital for assessment which may be fol- lowed by detention for treatment under article 12. A rticle 7(2) allows for the detention of a patient already in hospital. Admission for assessment An application for detention under article 4 may be made by the ne arest relative or ASW and requires one medical recommendation. This should be by the patien t \200\231s GP or a doctor who knows the patient, if this is practicable, and should not, e xcept in urgent cases, be by a doctor on the staff of the admitting hospital. Immediately o n admission to hospital the patient must be examined by the RMO, an appointed doctor, or an other doctor, who must submit a report to the responsible authority. They may then be detai ned for 7 days from the point of admission (this is limited to 2 days where the examination is not by the RMO or an appointed doctor, during which the RMO should examine the patient) . Detention may be extended by a further 7 days on one occasion following a further report from the RMO. Following deten- tion under article 4 a patient may be detained under article 12, remain informally, or be discharged. Assessment of patient already in hospital Under article 7(2), where a person is a voluntary inpatient, if it appears to a doctor on the staff of the hospital that an application for assessment ought to be made, then a report may be furnished to the responsible authority, a llowing detention for 48hrs. This may be followed by detention under article 4. Detention for treatment Where a patient has been detained under article 4, they may be furt her detained for 6mths under article 12. This requires a recommendation from an appointed d octor (not the doctor who made the assessment recommendation). This may be renewed for a fu rther 6mths and annually thereafter. Guardianship Article 18 allows for guardianship. The application is made by the nearest rel ative or ASW, and there must be two medical recom- mendations and an ASW recommendation. Th e patient must be suffering from mental illness or mental handicap, and guardianship should be neces- sary in the interest of the patient \200\231s welfare. Renewal is as for article 12. Nurses \200\231 holding powers Article 7(3) allows nurses (of the prescribed class) to deta in an inpatient in hospital for up to 6hrs to allow for a medical assessment regarding dete ntion. Detention under article 7(3) ends when the doctor arrives. Treatment of patients subject to compulsion Articles 62 \200\22369 set out very similar pro visions regarding consent to treat- ment as set out for England and Wales by the 1983 Act ( b p. 880). Leave, absconding, and transfer Procedures allow for patients to be granted leave of absenc e with the authorization of the RMO (article 15); for patients to be taken into custody 21_Semple_Chap21.indd 892 12/7/2012 4:33:34 PM MENTAL HEALTH ACT: NORTHERN IRELAND 2 893 and returned to hospital if they abscond (article 29); and for patients to be transferred b etween hospitals (article 28). Review The MHRTNI operates in a very similar way to England and Wales, but must review a de tained patient if they have not been reviewed for 2 yrs. After reviewing a case the MHCNI m ay refer a patient to the MHRTNI or may recommend that the patient be discharged. The RMO m ay discharge a patient at any point. The nearest relative may also discharge a patient if n ot opposed by the RMO. Mental Health Commission for Northern Ireland The functions of the MHCNI are very similar t o those of the MWC in Scotland: the duty to protect individuals with mental disorder whethe r they are liable to detention or not; the power to recommend discharge of patients subject to compulsion; the responsibility to visit and inspect services; and the power to conduct enquiries into de \201 ciencies in care. 21_Semple_Chap21.indd 893 12/7/2012 4:33:34 PM CHAPTER 21 Legal issues 894 Mental Health Act: Republic of Ireland 1 Introduction The Mental Health Act 2001 replaced t he Mental Treatment Act 1945 and various modifying Acts passed in 1953, 1961, and 1981. The new Act was implemented in November 2006. Principles Section 4 sets out some principles to be considered in operating the Act. The be st interests of the person should be the principal consideration with due regard being give n to the interests of others who may be at risk of serious harm; the person should be noti \201 ed of proposals and should be allowed to make representations regarding these which s hould be given due consideration; any decision should give due regard to the right of a per son to dignity, bodily integrity, privacy, and autonomy. De \201 nition of mental disorder and criteria for compulsion Section 3 sets out the de \201 nition of mental disorder, which also includes the criteria for compulsory detention. \200\230Mental disorder \200\231 is de \201 ned as \200\230mental illness, severe dement ia, or signi \201 - cant intellectual impairment where: (a) because of the illness, disabi lity or dementia, there is a serious likeli- hood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or (b) (i) because of the seve rity of the illness, disability or dementia, the judgment of the person concerned is so imp aired that failure to admit the person to an approved center would be likely to lead to a s erious deterioration in his or her condition or would prevent the administration of appropr iate treatment that could be given only by such admission, and (ii) the reception, detentio n and treatment of the person concerned in an approved center would be likely to bene \201 t or alleviate the condition of that person to a material extent. \200\231 \200 \200\230Mental illness \200\231 means a state of mind of a person which affects the person \200\231s thinking, perceiving, emotion, or judgment and which seriously impairs the menta l function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons. \200\230Severe dementia \200 \231 means a deterioration of the brain of a person which signi \201 cantly impairs the in tellectual function of the person thereby affecting thought, comprehension, and memory and which includes severe psychiatric or behavioral symptoms such as physical aggression. \200 \230Signi \201 cant intellectual disability \200\231 means a state of arrested or incomple te development of mind of a person which includes signi \201 cant impairment of intelligen ce and social functioning and abnormally aggressive or seriously irresponsible conduct on t he part of the person. 21_Semple_Chap21.indd 894 12/7/2012 4:33:34 PM MENTAL HEALTH ACT: REPUBLIC OF IRELAND 1 895 Under section 8 the following are excluded if they are the only conditions present: persona lity disorder, being \200\230socially deviant \200\231, and being addicted to drugs or int oxicants. Other de \201 nitions Approved center Hospitals or other inpatient facilities for the care and treatment of people suffering from mental illness or mental disorder. Must be register ed with the MHC. Review tribunal The legal forum which reviews the making of every admission and renewal ord er. Has three members: a legally quali \201 ed chair- person, a consultant psychiatrist, a nd another member. Mental Health Commission (MHC) The body responsible for monitoring the standards of mental health services and protecting detained patients. Has a more direct role in the latter than similar bodies in the UK. Inspector of Mental Health Services Consultant psychiatrist appointed by the MHC to visit a nd inspect approved centers and to review mental health services. Will also review individu al cases when visiting centers. Mental Health Commission (MHC) The MHC was established in April 2002. Its main purpose is t o promote, encourage, and foster the establishment and maintenance of high stand- ards and good practices in the delivery of mental health services, and to protect the interests of d etained patients. It is noti \201 ed of every episode of detention and renewal, appoints t ribunals, maintains a panel of con- sultants to undertake independent examinations, appoint s an Inspector of Mental Health Services, maintains a register of approved centers, makes r egulations as to the use of seclusion and restraint, and prepares codes of practice and oth er documents. 21_Semple_Chap21.indd 895 12/7/2012 4:33:34 PM CHAPTER 21 Legal issues 896 Mental Health Act: Republic of Ireland 2 Compulsory measures Application for involuntary admission (section 9) An application for admission may be made under section 9 by a spouse or relative, an authorized of \201 cer (of the health board), a garda, or any other person (with certain exclusions applying). The applicant must have se en the person within the last 48hrs. Medical assessment (section 10) Within 24hrs of the application being made, a medical pract itioner (who does not work at the approved center where the person may be admit- ted) shoul d examine the person. The doctor should inform the person about the purpose of the examinat ion, unless this would be detrimental to the person. If the doctor considers the person to be mentally disordered then a recommendation may be made allowing involuntary admission to an approved center. This remains in force for 7 days. Power of the garda to detain and apply for involuntary admission (section 12) The garda may take a person into custody if they have reasonable grounds to believe that the person is m entally disordered and because of this there is a serious likelihood of the person harming themselves or others. They may forcibly enter premises if necessary. The garda would then f ollow the usual application for an involuntary admission procedure (section 9). If this app lication is granted the garda must take the person to the approved center. Removal to an approved center (section 13) The applicant is responsible for getting the per son to the approved center. If not possible then the doctor making the recommendation may r equest that staff from the center do this. The garda may be asked for assistance. Admission to approved center (sections 14 and 15) When the person is admitted to the approv ed center, a consultant psy- chiatrist must examine them as soon as is practicable (section 14). They may be held for 24hrs to allow this examination. If this psychiatrist is satis- \201 ed that the person is suffering from mental disorder then an \200\230admission orde r \200\231 is made. Under section 15 an admission order authorizes the detention and treat- ment of the patient in the center for 21 days. This may be renewed (as a \200\230renewal order \200\231) for 3mths initially, then 6mths, and then annually there- after. The consultant responsible for the patient must make the renewal following an examination in the week before making the r enewal order. When an order (admission or renewal) is made, the consultant must send a copy to the MHC and a written notice to the patient (section 16). Voluntary patients wishing to leave an approved center Previously a voluntary patient had t o give 3 days \200\231 notice of intention to leave. Under section 23 a voluntary patient m ay leave hospital at any point unless a consultant psychiatrist or doctor or nurse on the s taff considers 21_Semple_Chap21.indd 896 12/7/2012 4:33:34 PM MENTAL HEALTH ACT: REPUBLIC OF IRELAND 2 897 that they suffer from mental disorder. If this is the case they may be detained for up to 2 4hrs. During this period the responsible consultant must either discharge the patient or ar range an examination by another consultant. If this consultant is of the opinion that the p atient is mentally disordered then they issue a certi \201 cate and the patient is detaine d as they would be under an admission order (section 14). Treatment of patients subject to compulsion (Part 4) The consent of a patient to treatment is required except where the con- sultant psychiatrist considers that the treatment is nece ssary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and the patient is incapable of givin g such consent because of mental disorder. \200 Neurosurgery for mental disorder may not be performed unless the patient consents and it is authorized by a tribunal. ECT may not be given unless the patient gives consent in writing , or where the patient is unable or unwilling to give consent, the therapy is authorized by the responsible consultant psychiatrist and another consultant psychiatrist. Medication fo r the amelioration of the mental disorder for more than 3mths cannot be given unless the pa tient consents in writing, or, where the patient is unable or unwilling to give consent, th e continued medication is authorized by the consultant psychiatrist responsible for the pat ient and by another consultant psychiatrist. This must be renewed every 3mths. Review When the MHC receives a copy of an order it must refer the case to a tribunal, assig n a legal representative to the patient if they do not have one, and direct that a member o f the panel of consultant psychiatrists appointed by the MHC reviews the case (section 17). Within 21 days of the making of the order the tribunal must review the detention. The tribu nal may af \201 rm or revoke the order depending on whether the criteria for detention are met (section 18). An appeal against a tribunal \200\231s decision may be made to the Circu it Court (section 19). Leave, absconding, and transfers Procedures allow for patients to be allowed to be absent f rom the approved center with the authorization of the consultant responsible for their care (section 26); for patients to be taken into custody and returned to an approved center if they abscond (section 27); and for patients to be transferred to other approved centers and hospitals (sections 20, 21, and 22). 21_Semple_Chap21.indd 897 12/7/2012 4:33:34 PM CHAPTER 21 Legal issues 898 Issues of con \201 dentiality Whatever I may see or hear in the lives of men which ought not to be spoken abroad I will not divulge, as reckoning that all such should be kept secret. Hippocratic Oath Patients \200\231 right to con \201 dentiality Patients have a right to expect that inform ation about them will be held in con \201 dence by their doctors. Con \201 dentiality is central to trust between doctors and patients. Without assurances about con \201 dentialit y, patients may be reluctant to give doctors the information they need in order to provide good care. If you are asked to provide information about patients you should: \200 Seek patients \200\231 consent to disclosure of information wherever possible, whether or n ot you judge that patients can be identi \201 ed from the disclosure. Anonymize data where this will serve the intended purpose. Keep disclosures to the minimum necessary. Always do cument and be prepared to justify your decisions. \200 \200 Protecting information \200 Doctors have a professional responsibility to ensure patient information is effectively pro tected against improper disclosure at all times. Many improper disclosures are unintentiona l \200\224do not discuss patients where you can be overheard or leave patients \200\231 rec ords, either on paper or on screen, where they can be seen by other patients, unauthorized health care staff, or the public (see Table 21.1). Allowing for issues of personal safety, ensure that as far as possible your consultations with patients are private. Sharing information with others providing care \200 Make sure that patients are aware that personal information about them will be shared withi n the health care team, and of the reasons for this. Respect the wishes of any patient who does not wish speci \201 c information to be shared in this way, unless to do so would put others at risk of death or serious harm. Where patients have consented to treatment, expre ss consent is not usually needed before relevant personal information is shared, to enable the treatment to be provided safely and ensure continuity of care (e.g. medical secretaries typing letters to GPs, referrals for further investigations, referrals to other specialist s). Medical reports This includes both speci \201 c requests for a particular report on curren t med- ical problems and disclosure of information from existing medical records for a thir d party (e.g. court report, insurance claim, bene \201 ts claim). In these circumstances: 21_Semple_Chap21.indd 898 12/7/2012 4:33:34 PM ISSUES OF CONFIDENTIALITY 899 Satisfy yourself that the patient has been told about the purpose of the examination and/or disclosure, the extent of the information to be disclosed, and the fact that relevant info rmation cannot be concealed or withheld. (Showing the form or letter of request to the pati ent may assist in ensuring the patient understands the scope of the information requested.) Obtain evidence of written consent to the disclosure from the patient or a person properly authorized to act on the patient \200\231s behalf. Disclose only information relevant to t he request made. Include only factual information you can substantiate, presented in an unb iased manner. Always check whether the patient wishes to see their report (the Access to Me dical Reports Act 1988 entitles patients to see reports written about them before they are disclosed, in most circumstances). Disclosures without consent to employers, insurance comp anies, or any other third party, can be justi \201 ed only in exceptional circumstances (e .g. to protect others from risk of death or serious harm \200\224see Breaking con \201 den tiality b p. 900). \200 Recent developments In its report in 1997 the Caldicott Committee made a number of recom- m endations aimed at improving the way the NHS handles and protects patient information. A ke y recommendation was the establishment of organizational guardians to oversee access to pat ient-identi \201 able informa- tion. These \200\230Caldicott Guardians \200\231 have been established and are responsi- ble for internal protocols and policies on the use of such i nformation, and on its disclosure. A key principle is that of \200\230the need to know \200\231. Con \201 dentiality expectations: the reality Despite con \201 dentiality being one of th e main foundations of the \200\230privi- leged \200\231 doctor \200\223patient relationshi p, expectations about where personal information may be reasonably disclosed varies amongst patients and medical professionals at different stages of their training. Table 21.1 Con \201 dentiality expectations House staff (%) Medical students (%) Where information revealed Patients (%) Large professional meeting 69 94 81 To of \201 ce nursing staff 50 69 83 Identi \201 ed by name to other physicians 23 60 55 Told as a story at a party: To other physicians 18 60 57 To non-physicians 9 36 45 Told to spouse or \200\230friend \200\231 17 51 70 Weiss B (1982) Con \201 dentiality expectations of patients, physicians, and medical stude nts. JAMA 247: 2695. 21_Semple_Chap21.indd 899 12/7/2012 4:33:34 PM CHAPTER 21 Legal issues 900 Breaking con \201 dentiality Personal information should not be disclosed to a third party (e.g. relative, partner, solicitor, police of \201 cer, or of \201 cer of a court) witho ut the patient \200\231s express consent, except in the circumstances described here (p. 90 0). If you decide to disclose con \201 dential information against a patient \200\231s wis hes, you must document this decision in the patient \200\231s notes and be prepared to expl ain/justify your decision (and communicate this decision to the patient). Disclosures to protect the patient or others In this case, the risk to third parties is so serious that it outweighs the patient \200\231s privacy interest, and the appropriate perso n or authority should be informed without undue delay. Examples of such circumstances inclu de: \200 Where a colleague, who is also a patient, is placing patients at risk as a result of illnes s or other medical condition. (If you are in doubt about whether disclosure is justi \201 ed, consult an experienced colleague, or seek advice from a professional organization. The safety of patients must come \201 rst.) Where a patient continues to drive, against medic al advice, when un \201 t to do so. In such circumstances you should disclose relevant inf ormation to the medical adviser of the Driver and Vehicle Licensing Agency without delay. F uller guidance is given on b p. 902. To assist in the prevention or detection of a serious crime (i.e. where someone may be at risk of death or serious harm) (e.g. threats of violenc e \200\224see the Box 21.4) or suspected child abuse (b p. 662). Disclosure in connection with judicial or other statutory proceedings Under certain circums tances disclosure of information is required by law: \200 \200 Noti \201 cation of a known or suspected communicable disease. If ordered to do so by a ju dge or presiding of \201 cer of a court (unless the information appears to be irrelevant, e.g. details of relatives or partners of the patient not party to the proceedings). To assi st a Coroner, Procurator Fiscal, or other similar of \201 cer in connection with an inques t or fatal accident inquiry (only relevant information should be provided). An of \201 cia l request from a statutory regulatory body for any of the health care professions, where di sclosure is necessary in the interests of justice and for the safety of other patients. Dif \201 cult situations \200 Children and other patients who may lack competence to give consent (see b p. 870). \200 Always try to persuade them to allow an appropriate person (e.g. individual with parental r esponsibility) to be involved in the consultation. Always inform the patient (and their rel ative or carer) prior to passing on information to another responsible person or statutory agency (e.g. social services). 21_Semple_Chap21.indd 900 12/7/2012 4:33:34 PM BREAKING CONFIDENTIALITY 901 Document in the patient \200\231s record the steps you have taken to obtain consent and the reasons for deciding to disclose information. Where a person lacks capacity, disclosure sh ould be in that person \200\231s best interests and follow the other basic principles regar ding con \201 dentiality. Situations of dual responsibilities (i.e. contractual obligations to third parties, such as companies or organizations) (e.g. occupational health services, insurance companies, bene \201 ts agencies, police forensic medical advisors, armed forces, prison services), as wel l as obligations to patients. Always ensure patients are aware of the purpose of the consul tation, and to whom you are contractually obliged to release information. If in doubt, cons ult (in UK): \200 General Medical Council (GMC): guidance may be found in the document: Con \201 dentiality: Protecting and Providing Information. Royal College of Psychiatrists (RCP): guidance may b e found at http://www.rcpsych.ac.uk/ \201 les/pdfversion/cr133.pdf Consider seeking the ad vice of your Medical Defense body. M Box 21.4 The Tarasoff case On 27 October 1969, Prosenjit Poddar killed his ex-girlfriend, Tatiana Tarasoff. Two months earlier, Poddar had declared his intentions dur- ing an outpatient appointment with his ps ychotherapist, Dr Lawrence Moore, at the University of California at Berkeley \200\231s Cow ell Memorial Hospital. Dr Moore tried to have Poddar con \201 ned to a mental institu- tio n for observation (including asking the university police for assist- ance). When law enfor cement agents decided that Poddar was harmless and released him, Moore \200\231s director, Dr Harvey Powelson, requested that all evidence of contact between Moore and the police dep artment be destroyed. No one, including Dr Moore, pursued the case further. After the murder, Tatiana \200\231s parents became aware of this prior knowl- edge and sued the university regents, hospital, and police department, claiming that, at least, a warnin g should have been issued to her. On 1 July 1976 (more than six-and-a-half years after the murder), the Supreme Court of California found that the defendants had breached their duty to exercise reasonable care. In other words, physicians and therapists have a duty to warn third parties of threatened danger arising from a patient \200\231s violent intentions. As a \201 nal statement, the Court stated that \200\230protective privilege ends where publ ic peril begins \200\231. Note: although often quoted when discussing issues of con \201 dentiality, this case has n o legal bearing in the UK. Even in the USA the impact of the Tarasoff case has been less dr amatic and intrusive than one might expect. 21_Semple_Chap21.indd 901 12/7/2012 4:33:35 PM CHAPTER 21 Legal issues 902 Fitness to drive Principles and legal de \201 nitions \200 The Driver and Vehicle Licensing Agency (DVLA) in the UK sets out minimum medical standards of \201 tness to drive and the requirements for mental health in broad terms. A clear di stinction is made between the standards needed for Group 1 (cars and motorcycles) and Group 2 (lorries and busses) licenses, the latter being more stringent due to the size of vehicl e and the greater time spent at the wheel. \200\230Severe mental disorder \200\231 is de \201 ned by section 92 of the Road Traf \201 c Act 1988 as \200\230mental illness, arrest ed or incomplete development of the mind, psychopathic disorder or severe impairment of int elligence or social functioning \200\231. The standards set re \202 ect not only the need for an improvement in the mental state but also a period of stability, such that the risk o f relapse can be assessed should the patient fail to recognize any deterioration. The stand ards for patients with misuse of or dependency on alcohol or drugs are detailed on b p. 606 .