Legal considerations when sharing information
Personal information may be shared legally in one of three ways:
with the consent of the individual concerned (providing that individual has mental capacity: see Annex C);
when it is required by law (e.g. The Children’s Act 1989 requires information to be shared in safeguarding cases);
when it is in the public interest.
When information sharing is legally permitted, the Caldicott Guardian may need to decide how much information it is appropriate to share, in line with the third Caldicott principle. An organisation may hold a great deal of sensitive information, and any decision to share information must be proportional and relevant.
Caldicott Guardians may on occasions be asked to advise on disclosures that may be in the public interest, for example to protect individuals or society from risks of serious harm, such as serious communicable diseases or serious crime, or to enable medical research, education or other secondary uses of information that may ultimately benefit society. Personal information may be disclosed in the public interest, without consent—and in exceptional cases where consent has been withheld— 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.
There may be occasions when information sharing is legally permitted but not required. In these circumstances there must still be a justifiable legal basis for breaching confidentiality such as consent, benefit to someone without capacity to consent, or in the public interest.
There may also be circumstances where although it is legally permissible to share information, the Caldicott Guardian may decide that it should not be shared. There may also be occasions when there is no clear legal basis, or the legal basis is disputed, when the Caldicott Guardian may nevertheless agree that information may be shared. The particular circumstances should always be considered in each case, as factors present in one may be absent in another. In all cases, the Caldicott Guardian should be able to justify their decision and provide evidence of their considerations in making the decision.