Safeguarding Vulnerable Adults SWBCCG Pol 03 SWBCCG Pol02
DOCUMENT CONTROL Reference Number Version 1.5 Status Ratified Sponsor(s)/Author(s) David Farnsworth, Quality Manager Amendments Date By whom Nov David Farnsworth Contextual information to DHR 12 DHR guidance Nov 12 David Farnsworth Intended Recipients: All staff Monitoring Arrangements and Indicators: Training/Resource Implications: Group/Persons Consulted: All CCG Employees Safeguarding Team CCG Value: set out what we intend to do with clarity in order to ensure that we deliver Approving Body: Q&S Committee Date Approved: 15 November 2012 Date of Issue 19 November 2012 Review Date 19 November 2014 Contact for Review Policy Location: Summary Quality Manager SWB CCG Website To be read in conjunction with Mental Capacity Act 2005, Deprivation of Liberty Safeguards Code of Practice (DH 2005) Statement of Government policy on Adult Safeguarding (May 2011) Safeguarding Adults: The role of health services (March 2011) Safeguarding adults: multi-agency policy and procedures for the West Midlands Birmingham SAFEGUARDING ADULTS POLICY, PROCEDURE AND GOOD PRACTICE GUIDE (July 2012) Mental Capacity Act Policy 2
Contents Number Section Page No. 1.0 Introduction 4 2.0 Purpose 5 3.0 Scope 5 4.0 Roles & responsibilities 5 5.0 Definitions 7 6.0 Serious Case Reviews 9 7.0 Prevent 9 8.0 Domestic Homicide Review 10 9.0 Information Governance 11 10.0 Recruitment & employment Processes 11 11.0 Commissioning Arrangements 12 12.0 Training 12 13.0 Monitoring & Compliance 12 14.0 References 12 Appendices App 1 Guidance to Doctors and GPs on the release of medical records into a Domestic Homicide Review 17 3
1.0 Introduction Sandwell & West Birmingham Clinical Commissioning Group (SWB CCG) is committed to working with partner agencies to prevent all forms of abuse and mistreatment enabling residents to make a full and positive contribution to local society. The Black Country Cluster is presently accountable for ensuring all duties to safeguard vulnerable adults are discharged. At this time, significant changes affecting the structure of health commissioning will change these responsibilities. Under the Health and Social Care Act 2012, the greater accountability to safeguard vulnerable adults will transfer to Clinical Commissioning Groups on 1st April 2013. The National Commissioning Board will retain responsibility for commissioning some specialist services including Primary Care. The Government White Paper, Liberating the NHS (2010), puts patients at the heart of the NHS. Some adults, however are termed vulnerable adults as they may require additional support in securing their rights to live free from abuse and consequently be eligible for community care services. They may have greatest dependency and yet be unable to hold services to account for the quality of care they receive. In such cases, NHS commissioners have particular responsibilities to ensure that those patients receive high quality care and that their rights are upheld, including the right to be safe. SWBCCG is configured across both Sandwell and Birmingham Local Authority boundaries and is committed to support both lead agencies in this work. Safeguarding of Vulnerable Adults (SOVA) describes interagency arrangements to protect vulnerable adults from abuse and the CCG are active partners with both Sandwell Safeguarding Adults Board, and Birmingham Safeguarding Adults Board. The Department of Health guidance No Secrets (March 2000) provides guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse and requires the Local Authority to have the lead agency coordinating role. SWB CCG formally adopted the Safeguarding adults: multi-agency policy and procedures for the West Midlands and both Local Authorities are designated as the lead agency. The procedures can be accessed via: http://www.scie.org.uk/publications/reports/report60/files/report60.pdf This policy details responsibilities within health services at both strategic and operational level, in keeping with national policy and related statutory guidance, such as the Human Rights Act 1998 and the Mental Capacity Act 2005. It supports the ethos of safeguarding adults as everybody s business and in particular rights relating to dignity, freedom from abuse, equality, respect and fairness. 4
2.0 Purpose The CCG is committed to ensure that services are commissioned to meet recognised national standards in safeguarding adults and that there are clear arrangements for contract monitoring between commissioner and provider where quality, service user outcomes and value for money are considered and challenged. The CCG will champion the rights of vulnerable adults to be happy, healthy, safe and productive in their contribution to society and not to be abused, neglected or exploited. In safeguarding and promoting the welfare of vulnerable adults, the CCG is committed to creating an ethos which values working collaboratively with others, respects diversity (including race, religion, disability, gender, age and sexual orientation) and promotes equality. This policy focuses responsibilities for all staff, both in their capacity as commissioners of health care and where they may have direct involvement in concerns relating to adult abuse. It is recognised that responsibilities to safeguarding and promoting the welfare of vulnerable adults also extends to an individual s personal and domestic life. 3.0 Scope This policy applies to all staff (temporary and permanent) working within the CCG, as everyone has an individual responsibility for the protection and safeguarding of adults, in both their professional and personal lives. CCGs are required to have appropriate contract monitoring arrangements in place to ensure all providers and commissioners are meeting their contractual responsibilities in ensuring they are providing safe adult patient care and taking action to promote the safety and wellbeing of any adult at risk of abuse. 4.0 Roles & Responsibilities The CCGs accept the principles laid down within the respective Safeguarding Adults Board Guidelines, which are to: Take action to identify and prevent abuse from happening Respond appropriately when abuse has or is suspected to have occurred. Ensure that the agreed procedures are followed at all times. Provide support, advice and resources to staff in responding to safeguarding adults issues Inform staff of any local or national issues relating to safeguarding adults. Ensure staff are aware of their responsibilities to attend training and to support staff in accessing these events. Ensure staff have access to appropriate training, support and advice Ensure that the organisation has access to expertise in safeguarding adults Ensure staff have access to appropriate consultation and supervision regarding safeguarding adults 5
Understand how diversity, beliefs and values of people who use services may influence the identification, prevention and response to safeguarding concerns Ensure that information is available for people that use services, family members setting out what to do if they have a concern. Ensure that all recruitment practices conform with best practice including Criminal Records Bureau checks. Ensure that all managers are aware that any allegations of abuse or ill treatment which warrant investigation should be discussed at the earliest opportunity with the relevant Safeguarding Adults Team Accountable Officer The Accountable Officer is responsible for ensuring that the health contribution to safeguarding and promoting the welfare of vulnerable adults is discharged effectively across the local health economy through the CCG commissioning arrangements. The Accountable Officer may delegate this responsibility to the Clinical Lead for Quality & Safety as the Executive Director Lead for Safeguarding. Governing Body The Governing Body will regularly seek to remain informed on all matters of safeguarding, through output reporting from the Quality & Safety committee, receipt and oversight of the Annual report and through specific challenge. This is intended to heighten awareness and enable the Governing Body to anticipate and plan for risks which could affect the reputation of the organisation. Clinical Lead for Quality & Safety As the Executive Director Lead for Safeguarding, the post holder is a voting member of the Quality & Safety Committee. The Clinical Lead is responsible for providing assurance to the Governing Body of the effectiveness of Safeguarding arrangements, both internally and within commissioned organisations. Quality & Safety Committee With direct accountability to the Governing Body, the committee provides scrutiny and challenge to organisational performance. Receiving data from the Health Forum Learning from Serious Case Review Domestic Homicide reviews, Interim progress reports on large scale investigations Multi-agency reviews or safeguarding issue The committee will provide monthly reporting directly to the Governing Body. All staff It is required that all staff; 6
Are aware of the Safeguarding adults: multi-agency policy and procedures for the West Midlands. Be aware of the importance of listening to vulnerable adults, particularly when they are expressing concerns about either their own or other people s welfare. Know how to act on concerns that a vulnerable adult may be at risk of significant harm through abuse or neglect in line with local guidance. Know who to contact to discuss, access support or to report any concerns about a vulnerable adult. Be aware of own roles and responsibilities and recognize limits and boundaries to role. Maintain accurate, comprehensive and legible records if working with vulnerable adults and store securely in line with local guidance. Take part in training, including attending regular updates so that they maintain their skills and are familiar with procedures aimed at safeguarding and promoting the welfare of vulnerable adults. 5.0 Definitions Vulnerable adult A vulnerable adult, as stated in No Secrets,(2000), or an adult deemed to be an adult at risk of abuse, as stated in the Law Commission Report (2011), is a person aged 18 years or over and who may be eligible for community care services by reason of mental or other disabilities, age or illness and who may be unable to take care of him or herself or unable to protect himself or herself from significant harm or exploitation. A vulnerable adult can be a person: With a mental health problem, including dementia With a physical disability With drug and alcohol related problems With a sensory impairment With a learning disability who has a physical illness with an acquired brain injury who is frail and/or is experiencing a temporary illness Who may be: living in their own home in hospital in a residential care and / or nursing home attending a day centre attending a social club without a permanent home 7
(The above lists are not intended to be exhaustive.) Abuse Abuse is the violation of an individual s human or civil rights by any person or persons. An individual, a group or an organisation may perpetrate abuse. Abuse can be passive or active; it can be an isolated incident or repeated. Abuse results in significant harm or exploitation of the vulnerable adult. It may be perpetrated by anyone who has power over the person whether they are a carer or relative, a paid member of staff or professional or may occur as a result of persistently poor care or a rigid and oppressive regime (Department of Health 2000). Categories of Abuse The main forms of abuse: Physical including hitting, punching, slapping, pushing, kicking, misuse of medication, restraint or inappropriate sanctions. Sexual including rape and sexual assault or sexual acts to which the vulnerable adult has not consented, or could not consent to or was pressured into consenting to. Psychological including emotional abuse, threats of harm or abandonment, deprivation of contact, humiliation, blaming, controlling, intimidation, coercion, harassment, verbal abuse, isolation or withdrawal from services or supportive networks. Financial or material including theft, fraud, exploitation, pressure in connection with wills property or inheritance or financial transactions, or the misuse or misappropriation of property, possessions or benefits. Neglect and acts of omission including ignoring medical or physical care needs; failure to provide access to appropriate health, social care or educational services; the withholding of the necessities of life such as medication, adequate nutrition and heating. Discriminatory including racist, sexist, that based on a person s disability, and other forms of harassment, slurs or similar treatment. (Department of Health 2000) Institutional abuse is the mistreatment of people brought about by poor or inadequate care or support or systematic poor practice that affects the whole care setting. It occurs when the individual s wishes and needs are sacrificed for the smooth running of a group, service or organization. Any or all of these categories of abuse may be perpetuated as a result of deliberate intent, negligence or ignorance and are not mutually exclusive. Many situations will involve a combination of types of abuse. 8
6.0 Serious Case Reviews The CCG embrace their duty to work in partnership with both Birmingham and Sandwell Safeguarding Adult Boards and /or all other safeguarding adults board across the country, in conducting individual management reviews when an adult experiencing abuse or neglect dies, when there has been a serious incident, or in circumstances involving the abuse or neglect of one or more adults. The purpose of a Serious Case Review is to establish whether there are lessons to be learned from the case about the way local professionals and agencies work together to safeguard vulnerable adults. Where this occurs, it is intended to use the review of the case as a learning process to trigger recommendations that specifically identify where systems and practices might be improved to contribute to more effective inter-agency working and to better outcomes for vulnerable adults. In addition, it is necessary to ensure that any urgent issues that require immediate actions are dealt with as soon as they are identified. The CCG will Inform the appropriate authorities including the Care Quality Commission when a Serious Case Review is commissioned. Coordinate Independent Management Review (IMR) with regard to commissioned services. Ensure that the review, and all required actions following the review are carried out according to the timescale set out by the Serious Case Review Panel scoping and terms of reference. Ensure that both examples of good practice and lessons to be learned are disseminated across all levels of the organisation and across all appropriate commissioned services. Utilise the Quality & Safety Committee to monitor the progress of identified recommendations and supporting action plans for issues identified. If a Serious Case Review is deemed not to be required, but significant learning from the incident is needed then a Tabletop Review (TTR) will be commissioned. This may be where an adult who may be in need of safeguarding dies or experiences serious harm which is not due to direct abuse but there is evidence of self neglect and / or refusal of services. There may be concerns about their capacity to self-care and understand the consequences of not doing so. The key agencies and professionals involved in an identified case will be invited to examine the case together. Rather than an IMR, agencies will provide chronologies of events. The process will involve both operational staff and their managers who would own the summary of learning at the end of the process, leading to these being disseminated more quickly at an operational level. 7.0 Prevent Prevent is part of the national strategy led by the Home Office that focuses on working with individuals and communities who may be vulnerable to the threat of violent extremism and terrorism. Supporting vulnerable individuals and 9
reducing the threat from violent extremism in local communities is a priority for the health service and its partners. The healthcare sector is a key strategic partner in Prevent and this was endorsed by the publication of the Prevent Strategy (2011) with the following objectives: Challenge the ideology that support terrorism and those who promote it Prevent vulnerable individuals from being drawn into terrorism and ensure that they are given appropriate advice and support Work with sectors and institutions where there are risks of radicalization Healthcare workers may have contact with vulnerable adults or children who could become victims of radicalisation. There is no obvious profile of a person likely to become involved in terrorist-related activity, or single indicator of when a person might move to support extremism. Vulnerable individuals who may be susceptible to radicalisation can be patients or staff. Prevent ensures that those who are at risk will receive help and support from partners best placed to meet the identified lead. Contracts of employment, professional codes of conduct, and safeguarding Frameworks such as No Secrets (2000) require all healthcare staff to exercise a duty of care to patients and, where necessary, take action for safeguarding and crime prevention. The CCG will ensure that there are robust Prevent arrangements in place across the health economy. This will be monitored by existing audit processes and form part of quality contracting monitoring. The CCG staff will receive Prevent awareness training via Level One Safeguarding Adults Awareness. For raising concerns, the CCG staff will contact the Quality Manager in the first instance, who will provide advice and identify local referral pathways if necessary. 8.0 Domestic Homicide Review A Domestic Homicide Review may involve the death of a vulnerable adult. Statistics support that in England, 1.6% of older people (aged 66 years and over) reported experiencing abuse (psychological, physical, sexual and financial) in the past year from a family member, close friend or care worker (DH 2007). Forty per cent of the abuse was perpetrated by a partner and 43% by another family member. In addition, women and men with a long-term illness or disability are almost twice as likely to experience domestic violence as others. Domestic Homicide Reviews (DHR) were established on a statutory basis under Section 9 of the Domestic Violence, Crime and Victims Act 2004 and came into force on 13th April 2011. 10
A Domestic Homicide Review refers to a review of the circumstances in which the death of a person aged 16 or over has or appears to have, resulted from violence, abuse or neglect by: A person to whom they were related or was/has an intimate relationship A member of the same household This legal requirement is similar to the Serious Case Review process and has been established to ensure agencies are responding appropriately to victims of domestic violence by offering and putting in place appropriate support mechanisms, procedure, resources and interventions. The aim is to avoid future incidents of domestic homicide and violence. The CCG has a duty to have regard to the guidance and to ensure that providers across the health economy have the necessary arrangements to respond to this statutory guidance. The Home Office guidance provides more detail and should be consulted as necessary by the agencies involved in establishing and conducting DHRs: http://www.homeoffice.gov.uk/crime/violence-againstwomen-girls/domestic-homicide-reviews/. This will be monitored through existing auditing and reporting and also form part of quality contracting monitoring. The purpose of a DHR is to: Establish what lessons are to be learned from the domestic homicide regarding the way in which local professionals and organisations work individually and together to safeguard victims; Identify clearly what those lessons are both within and between agencies, how and within what timescales they will be acted on, and what is expected to change as a result; Apply these lessons to service responses including changes to policies and procedures as appropriate; and Prevent domestic violence homicide and improve service responses for all domestic violence victims (both adults and children) through improved intra and inter-agency working. DHRs are not inquiries into how the victim died or into who is culpable; that is a matter for Coroners and criminal courts, respectively, to determine as appropriate. DHRs are not specifically part of any disciplinary enquiry or process. Where information emerges in the course of a DHR indicating that disciplinary action should be initiated, the established agency disciplinary procedures should be undertaken separately to the DHR process. Alternatively, some DHRs may be conducted concurrently with (but separate to) disciplinary action. 8.1 Notification of a Domestic Homicide Once any agency becomes aware of a domestic homicide, they should immediately alert the Chair of the Safer Sandwell Partnership (SSP) Board. 11
West Midlands Police should also send formal written notification of the incident to the Chair of the Safer Sandwell Partnership. The latter will trigger the 6 months timeframe for completion of the DHR review. Overall responsibility for establishing a review rests with the Safer Sandwell Partnership. As the Community Safety Partnership for Sandwell, SSP is well placed to initiate a DHR and Review Panel due to their multi-agency make up and role. Any professional or agency may refer such a homicide to the SSP in writing if it is believed that there are important lessons for inter-agency working to be learned. Note: Where partner agencies of more than one Local Authority area have known about or had contact with the victim, the CSP of the Local Authority area in which the victim was normally resident should take lead responsibility for conducting any review. 8.2 Domestic Homicide Review Process On notification of a domestic homicide, a meeting of the SSP DHR Task Group will be called as soon as possible after the homicide has taken place. Membership of this Task Group will include representation from the CCG. This Task Group will assist the Chair of SSP Board in deciding whether a DHR should take place and advising on the membership and work of each DHR panel, including Chairs and Authors. 8.2.1 Securing and gathering initial records On notification of a homicide, an officer appointed by the SSP will write to agencies who may have been involved with the victim or perpetrator in the few days immediately following knowledge of the homicide to secure records and to gather together initial records from each agency. Where notified, the GP practice will take steps to secure their records and such records will be secured by a Co-ordinating Officer on behalf of the CCG (see Appendix 1). Please note this is not a substitute for the Individual Management Review that will be required in the second stage of the DHR 8.2.2 DHR Panel Once the need for DHR is confirmed, the SSP will establish a DHR Review Panel, with the CCG represented. The panel is responsible for Receiving and reading reports from all agencies Presenting reports Debating the findings and agreeing the issues Agreeing the overview report 8.2.3 Individual Management Review (IMR) The DHR Panel will commission Individual Management Reviews from all agencies that have had involvement with the victim or perpetrator. 12
The aim of Individual Management Reviews (IMRs) is to look openly and critically at individual and organisational practice to see whether the case indicates that changes could and should be made, and if so, to identify how those changes will be brought about. They must include a conclusion with identified lessons the organisation has learnt from the review and the actions they have taken or intend to take to address them. A template will be provided by the SSB. Reports will be prepared by a clinician appointed by the CCG and should provide a critical analysis of the organisation s management of the case. The author will make clear in their IMR their efforts to provide some independence into the process Members of statutory agencies who have responsibilities for completing Individual Management Reviews (IMRs) may also be members of the Review Panel, but the Panel will not consist solely of such people. 8.2.3 Overview Report The Overview Report is written by the Independent Author on behalf of the SSP. This will; Summarise the case Identify lessons to be learned Set out recommendations Contain an Executive Summary The Executive Summary will be a public document, will be short, anonymous and based on the Overview Report. The SSP Board will ensure that all recommendations are actioned and will request updates from agencies. The action plan will remain on the SSP Board Agenda until all actions have been implemented 9.0 Information Governance No Secrets (2000) states that the government expects organisations to share information about individuals who may be at risk from abuse. This is also stressed by Safeguarding Adults (ADASS 2005) in the framework for good practice. Each agency holds information that in the normal course of events is regarded as confidential and will have their own safeguards and procedures for dealing with the same. Personal information is subject to the principles of the Freedom of Information Act 2000, the Data Protection Act 1998, the Human Rights Act 1998 and the common law doctrine of confidentiality. Wherever possible, the vulnerable adult should be asked to give their consent for their information to be shared, if they are considered to have the capacity to consent to information sharing. 13
If consent is not given, the person lacks capacity to consent, or it is felt not appropriate to tell the vulnerable adult, then it is possible to share information without the consent of the patient in certain circumstances e.g where a crime may have been committed or others may be at significant risk. Concern about the abuse of a vulnerable adults provides sufficient grounds to warrant sharing information on a need to know basis and /or in the public interest in accordance with established data protection principles. Unnecessary delays in sharing the information should be avoided, where there is a risk of harm to an individual/ individuals. The CCG will follow the Safeguarding adults: multi-agency policy and procedures for the West Midlands which provides guidelines to staff as to when and with whom information can be shared. These can be viewed on the link below: http://www.scie.org.uk/publications/reports/report60/files/report60.pdf 10.0 Recruitment and Employment Processes The CCG has a duty to ensure that safe recruitment processes are complied with and act in accordance with the NHS employers regulations. In addition the CCG acknowledges the statutory duty to ensure that appropriate action is taken efficiently and effectively, if an allegation of abuse is made, or a suspicion or concern arises about an employee, student or independent contractor. 11.0 Commissioning Arrangements The CCG will ensure that service specifications for commissioned and contracted services include clear service standards and monitoring arrangements for safeguarding adults as outlined in the Care Quality Commission (CQC) Essential Standard Outcome Seven. The CCG will also ensure that all health agencies and providers with which they have commissioning / contracting arrangements are linked to the relevant Safeguarding Boards and have robust policies and procedures which are in accordance with the Safeguarding adults: multi-agency policy and procedures for the West Midlands. This includes robust operational guidance, informed decision making, external referral and multi-agency collaboration. The CCG will seek assurance from providers by a broad range of quality monitoring mechanisms drawing from qualitative and quantitative data which will include safeguarding performance. 12.0 Training Good practice would dictate that all members of staff receive training on recognising and responding to domestic abuse. This is included in the training for Safeguarding Vulnerable Adults and Safeguarding Awareness (level 1) training. Bespoke training will be provided to all specialist members of staff who work in the organisation in accordance with their role and responsibilities. 13.0 Monitoring the Compliance and Effectiveness of this Policy 14
This policy will be reviewed every 3 years The Designated Lead will provide regular reports to the Quality and Safety Committee of the activities and developments within Sandwell and West Birmingham CCG relating to domestic abuse services. 14.0 References Association of Directors of Social Services -ADASS(2005) Safeguarding Adults: A National Framework of Standards for Good practice and Outcomes in Adult Protection Work Data Protection Act 1998 Department of Health (2000) No Secrets : Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults Department of Health (2004) Standards for Better Health Department of Health (2005) National Standards, Local Action Department of Health (2006) Our Health, Our Care, Our Say Department of Health (2006) Safeguarding Vulnerable Adults Group Act Department of Health (2007) NHS Information Governance Department of Health (2010) Equity and Excellence : Liberating the NHS Department of Health (2010) Clinical Governance and Adult Safeguarding : An Integrated Process Department of Health (2011) Safeguarding Adults: the role of Health Services Deprivation of Liberty Safeguards (2009) Domestic Violence, Crime and Victims Act 2004 Equality Act 2010 Home Office (2011) Prevent Strategy Freedom of Information Act 2000 Health and Social Care Act 2012 Human Rights Act 1998 Law Commission Report (2011) Adult Social Care Mental Capacity Act 2005 Safeguarding Vulnerable Groups Act 2006 15
Appendices 16
Appendix 1 Guidance to Doctors and GPs on the release of medical records into a Domestic Homicide Review What is a Domestic Homicide Review (DHR)? A DHR is a multi agency review aimed at learning lessons from the way agencies and individuals worked together in cases where someone is killed in circumstances of domestic abuse. They are undertaken pursuant to 9(3) of the Domestic Violence, Crime and Victims Act (2004) and subsequent guidance. There is a requirement that agencies work together to produce a meaningful review. They are not fault finding exercises. That is the function of the Criminal and Coroners Courts. They are an enquiry into how people worked together in order to try and avoid such incidents arising in the future How is a DHR conducted? Experienced and senior officers from each professional discipline e.g. police, GP s, social workers are appointed to review their relevant agencies records, interview staff and prepare a report. This is called an Independent Management Review (IMR). They won t have had previous involvement with the case. They then pass those reviews onto an independent person who will author a report bringing all the information together. The process is very similar to a Serious Case Review which follows when a child dies in circumstances of neglect or violence. Why are medical records required? The records kept by any agency, including GP s and medics, form an important contemporaneous record of events which, when reviewed, can help tell the true story of how professionals were responding to the circumstances they were in and establish whether different ways of working could produce better outcomes in the future Whose medical records might be required? The records of the victim, his or her children and the alleged perpetrator may all be relevant to the review. Not all the records will need to be accessed. Only records identified as relevant to the issues under review will need to be considered. Do I need the consent of the patient? No (see later). However both courtesy and best practice says that it is normal to seek consent at the right time. 17
What is expected of me/the record holder? You will be provided with the terms of reference of the review and a short explanation of the key issues. As the record/document owner you should then review the records to see whether anything in them is relevant. If there is nothing relevant then simply advise the person who made the request of that fact and the matter then ends. If you do identify relevant records, then advise the person who made the request of you and where possible seek consent to the records being disclosed to the IMR author. Once that consent is obtained then send the records on to the IMR author. Can I release records if the patients consent is refused? Yes. The law and guidance is very clear that you can release the records even when the patient explicitly refuses consent. There are several legal models which govern the disclosure of records and information in these circumstances. They are briefly considered below, but they all add up to pretty much the same thing. If you reach conclusions using one legal route then the same thinking will probably apply to the others. The Data Protection Act 1998 (DPA) The DPA explicitly allows the release of confidential personal information, even where consent is refused, for the prevention of crime (S 29). DHRs are explicitly intended to learn lessons to prevent homicides in the future and come squarely within this section. In reaching a decision to release information under the DPA, the principles under the Act need to be applied. These are very similar to Caldecott principles with which you will be familiar. The main point is that only relevant and accurate information is shared for a specific and legitimate reason. The processes used in a DHR ensure this is achieved. The Human Rights Act 1998 (HRA) The HRA provides that individuals have a Right to respect for private and family life (Article 8). Decisions about the sharing of personal information and patient records would be covered by this. This is not an absolute right. Information and records can be shared without consent under Article & if doing so is lawful and necessary. The prevention of crime is explicitly included as a legitimate ground for interfering with a right to respect for private life. Again, a common sense and proportionate approach needs to be taken: what information is actually relevant to the DHR? What do the terms of reference for the review actually require? Providing information that answers the terms of reference is clearly lawful. It might be that there is also non relevant information, for example perhaps about a sexually transmitted disease treated many years earlier which would not be relevant and not need to be disclosed. 18
The Common law & the GMC Guidance The Common Law of England (Judge made law in court cases) has for many years also provided guidance and this is reflected in the GMC guidance which is helpful and concise. The GMC advise 36. Confidential medical care is recognised in law as being in the public interest. However, there can also be a public interest in disclosing information: to protect individuals or society from risks of serious harm Doctors sometimes think that only a real risk of physical harm justifies disclosure but this is not what the law says. This paragraph in the GMC guidance correctly sets out that protecting society from harm is also a legitimate reason to share information and this is just what a DHR sets out to do (c.f. the DPA & HRA prevent crime criteria). The GMC go on to say 37. Personal information may, therefore, be disclosed in the public interest, without patients' consent, and in exceptional cases where patients have withheld consent, if the benefits to an individual or to society of the disclosure outweigh both the public and the patient's interest in keeping the information confidential. What the GMC guidance (just like the HRA and DPA) asks you to do is establish what is genuinely in need of sharing and then do so in a confidential and secure way as part of the DHR process. All of the different legal models simply require you to make a judgement about what the review genuinely requires. When you disclose information that you hold that answers the questions set out in the terms of reference then you will be complying with the law. What do the GMC say? We feel that there is a strong parallel with Serious Case Reviews. Our 0-18 years guidance for doctors (paragraph 62) says that doctors "should participate fully" in Serious Case Reviews; it goes on to say "When the overall purpose of a review is to protect other children or young people from a risk of serious harm, you should share relevant information, even when a child or young person or their parents do not consent." We think it reasonable that this should be the principle that doctors should follow in cooperating with DHRs as well 1 1 Letter from GMC to Professor Pat Cantrill, Chair of Adult A DHR Sheffield, 6/10/11 19
Why bother asking for consent if it isn t needed? Firstly, it demonstrates a courtesy to the patient and shows that, whoever they are, you respect their rights and are taking their wishes and feelings into account. It also ensures that they feel they are involved in the DHR process; it is after all about them, even if they are the alleged perpetrator. This is why the GMC guidance tells you to do this. What records should I disclose? You need to review your records and see if there is anything that is relevant to the terms of reference (ToR) or any other information provided. If nothing is relevant then nothing should be disclosed. If there is something relevant (for example, consultations around mental health issues in the time period in the ToR, then that should be provided to the IMR author. Who are the records disclosed to? The records are only disclosed to the IMR author who will have a similar professional background to yourself and understand your professional issues. They will be kept securely. The IMR author will review then as part of their report writing process. The records will then be destroyed or returned to you if you wish. The actual DHR report will be based on the IMR reports prepared by each agencies author. Is a Court Order required? No. There are no court proceedings associated with a DHR so there is nothing for the Court to make an Order for. The responsibility for reviewing and disclosing records lies with each agency that holds them. Will individuals or professionals be identified in the DHR? No. Professional identities are anonymised e.g. HV 1 for a health visitor or GP 3 for a GP. Sensitivities around these issues can be communicated via your IMR author Will the DHR be made public? Yes. This is a Government requirement. When will the DHR be published? While the preparation of the DHR can commence as soon as the homicide occurs, publication would usually wait until after any criminal process has concluded in order that any information that emerges through the trial process can be incorporated. There is always a dialogue with HM Coroner as to the timing of the report to establish whether the Coroner would also wish for publication to wait on any inquest. This can vary from case to case. The only time publication would happen before a criminal trial was if there was no prospect of a trial within a reasonable time frame, for example if the perpetrator was missing or is unknown. Do I have to take the decision to release the records? Yes. As the records owner the decision is yours. You need to make it in light of the guidance under the DPA, HRA and GMC above. 20
Who can I take advice from? In the first instance you should feel at liberty to discuss any issues with your Quality Manager. They will understand the issues from your perspective. Similarly the Independent DHR author can also be approached for advice, as can the chair of the Safer Partnership Board. The Corporate Assurance Lead for the CCG can provide guidance and if there are any legal issues then the legal advisor allocated to the DHR will be able to explain the Boards position from a legal perspective. Reference; Sheffield Safer & Sustainable Community Partnership Board (October 2011) 21