Confidentiality and Disclosure

1. Confidentiality and Disclosure Paul Brown Director Scottish Disability Team p.d.brown@dundee.ac.uk www.sdt.ac.uk

2. Confidentiality and Disclosure DDA Part IV The Act covers: • All publicly funded HEI’s • ‘responsible bodies’ • individual liability • All students, all potential students, all courses. • All Staff including: full/part-time, guest lecturers etc.

3. Confidentiality and Disclosure DDA Overview What is Discrimination under Part IV? • Institutions have a duty not to discriminate against a disabled person for a reason related to his/her disability and without justification • Discrimination can occur through • Less favourable treatment • Failure to make reasonable adjustment

4. Confidentiality and Disclosure Less favourable treatment and disclosure of a disability • In order to avoid discriminating through less favourable treatment on the grounds of disability, responsible bodies will need to know about that person’s disability. • If they do not know and could not reasonably have known that someone was disabled, then that person has not been treated less favourably for a reason relating to his or her disability.

5. Confidentiality and Disclosure Less favourable treatment and disclosure of a disability cont’d • When one person has been told in the institution then the institution could be deemed to know about a person’s disability.

6. Confidentiality and Disclosure The Duty to make Reasonable Adjustments [s28T(1)] • Substantial disadvantage • Date of implementation • Anticipatory requirements • Knowledge and anticipated knowledge

7. Confidentiality and Disclosure Providing Opportunities for Disclosure • Admission/enrolment form • When registering for exams • When registering for accommodation • When using the careers service for the first time • When joining the library • When registering at the beginning of each new year/module ……and more

8. Confidentiality and Disclosure Why is confidentiality important? • Managing Relationships • Breach of Confidence actions!

9. Confidentiality and Disclosure What Information is capable of being protected? • Includes personal information (“matters that one would regard as personal”) • Can include information obtained through observation • Making information freely and entirely public at any time effectively gets rid of any duty of confidentiality (unless publicised by the confidant or other person in breach of confidence)

10. Confidentiality and Disclosure What does the Pursuer have to prove in a Breach of Confidence action? • The information has the “necessary quality of confidence” • The information is received in circumstances which impose a duty of confidence • The information has been, or is likely to be, used or disclosed without the authority of the confider • The information that is claimed to be confidential requires to be specific

11. Confidentiality and Disclosure The Eight Data Protection Principles • Fair • Specific • Adequate • Accurate • Retention • Rights • Security • Transfers abroad

12. Confidentiality and Disclosure Practical Steps When a student discloses • Make a note of the disclosure and the details given • ideally get the student to sign • If student asks for “confidentiality” • Explain pros and cons - Try not to guarantee complete confidentiality

13. Confidentiality and Disclosure Paul wishes to thank Lesley Paterson Solicitor, Thorntons WS for some of the material that is in this presentation. Legal Disclaimer: "This material is intended to give general guidance on the law. However, you should take professional advice before acting on any of the material as it may not be appropriate to your circumstances. Opinions are expressed without liability."