Dealing with consent being refused

In some cases, the individual may refuse to give consent. Unless there are other factors about a person’s ability to understand the implication of refusal, or risk factors exist, in the first instance we must accept the individual’s refusal. Where doubt about the person’s understanding, or risk exists, we must weigh the balance between the person’s right to privacy and their or others wellbeing and safety, which will be caused by not sharing information.

In these latter circumstances, we should consider whether there remains a need and justification to share without consent, despite permission to share being withheld.

Indicators which may override the refusal to share:

  1. Failure to share information appropriately may constitute a serious breach of the duty of care
  2. Sharing information without consent may be necessary and appropriate under some circumstances such as:
      • When a child or ‘vulnerable adult’ is believed to have been abused or at risk of significant harm
      • Where there is evidence of serious public harm or risk of significant harm to others
      • Where there is evidence of a serious health risk to an individual
      • For the prevention, detection or prosecution of a serious crime
      • When instructed to do so by the court
      • Where there is a statutory requirement e.g. where the information is required by a children’s reporter as part of their investigation of a child referred to them.

It should be less difficult for us to make a decision to share personal or sensitive information without consent in circumstances such as those noted above.  The issue of sharing information will arise in a wide variety of situations. Issues of actual or potential risk needs treated with particular care. (See section 6).

If an individual refuses to give their consent to their information or that of their child being shared, we must explain the consequences of our not sharing information to them or their carer.  The professional should explain that the person may have to provide the same information to several professionals and delays in service may occur as a result. For example a service from Social Services cannot be provided, on request from a health practitioner unless information is shared between the two agencies so that social work staff understand the person’s needs and how to meet these.

If we decide to ignore a service user/parent/carer’s refusal to agree to information being shared, we need to record this in the individual’s file indicating:

      • Why information was shared
      • What information was shared
      • With whom the information was shared

Equally, we need to record a decision to agree not to share information with other agencies if permission to share is refused.  The practitioner needs to discuss this decision with their line manager and have it endorsed. Failure to share outwith legitimate, agreed and recorded circumstances may result in serious consequences for the Practitioner in some circumstances.  (Refer to Data Protection Act 1998)

It is important that the basis for not sharing is recorded and noted in the case notes and the service user is informed of the decision.

Note: Anyone who receives information, which has been disclosed without consent should be made aware of both this fact and the basis on which the decision to disclose was made.