Confidentiality and Consent

Maintaining privacy and confidentiality of Service User information is a basic principle of complaints management.  It is the role of all HSE staff to ensure that privacy and confidentiality of Service User data is maintained.

Service users must be assured that their feedback and their personal details will be treated in confidence to the greatest extent possible consistent with the public interest and the right to privacy. The Data Protection Acts 1988 and 2003 place an obligation on the HSE and staff to safeguard the right of individuals in relation to the processing of their personal data.  Under the Data Protection Acts, personal information should only be used or disclosed for the purpose for which it was collected or another directly related purpose.  Feedback information required for reporting and statistical purposes will be anonymised and all identifiable data will be removed.

The Freedom of Information Act 2014 confers on all persons the right of access to information held by public bodies, to the greatest extent possible, consistent with the public interest and the right to privacy.  It is imperative that all staff are aware of the right of the Service User to access any information held by the HSE in relation to the management of their feedback, subject to the exemptions set out in the Act. Therefore, staff must ensure that consent to access patient confidential information is obtained where required and that decisions made during the complaint management process are supported by facts and evidence.

The principles of natural justice and fairness require that any persons directly affected by a complaint be;

  1. Informed of the complaint,
  2. Informed of the conclusions reached following investigation of the complaint and of the findings which informed these conclusions, and
  3. Afforded the opportunity to respond to any adverse findings.

Where the screening and/or investigation of a complaint indicates that there is a requirement to disclose some or all details, e.g. there is evidence of abuse that must be reported in accordance with the Children First Guidelines, the Service User will be informed immediately and the information will be directed to the appropriate service.

Access to Personal Confidential Information

For the purpose of accessing Service User confidential information as part of the investigation of a complaint, the HSE must ensure that it has the consent of the Complainant to do so (or the person about whom the complaint was made if it is not the same person).

Consent may be obtained in three ways:

  1. HSE Feedback Leaflet: The Service User may give consent on the HSE feedback leaflet. This provides the HSE with permission to access Service User confidential information to investigate the complaint.
  2. Acknowledgment Letter: The acknowledgement letter must outline the process that will be used to manage the complaint and the Complainant will be asked to contact the relevant Complaint Officer within 5 working days from the date on the acknowledgement letter if they do not wish their patient confidential information to be accessed during the process of the investigation.
  3. Verbal Consent Recorded by Staff Member: If a verbal complaint is made to a staff member/Complaint Officer who proceeds to record the complaint for the purposes of a formal investigation, the staff member must ask the Complainant to give consent to access the relevant patient confidential information. The staff member must record this consent and have the Complainant sign the consent if appropriate. (link)

    It is important to note that the above consent only allows access to the information in the record that is relevant to the complaint.

    Service users must be informed that refusing or restricting access to relevant patient confidential information may
    impede the proper investigation of the complaint.

    The complaint management process must ensure that the details of the complaint and information gathered or received through the investigation of the complaint are only viewed by relevant personnel and that the dissemination of this information is restricted to a rigorous need to know basis.

    For the purpose of gathering and publishing statistics and for educational purposes, all patient identifiable data and personal data must be removed from the complaint and the complaint identified using a designated code. Care must be taken to ensure that specific locations and individuals cannot be identified when using this data for these purposes.

Complaints on behalf of a Service User

  • When a complaint is made on behalf of a Service User the HSE must endeavour to ensure that the complaint is being made with the consent of the Service User.
  • When accepting a complaint on behalf of a Service User, the HSE must ensure that it is appropriate for the Complainant to make a complaint as detailed in Section 46, (3) and (4) of the Health Act 2004 and that the identity of the Complainant is validated.
  • When a complaint is made on behalf of an incapacitated person, the HSE must ensure that this Complainant, by law or by appointment of a court, has the care of the affairs of that person.
  • An objectively reasonable approach to this issue will usually prevail with each situation being considered on an individual basis.
  • Where the Complaint/Review Officer has a concern about the consent of the Service User the Complaints/Review Officer will make every effort to get the consent of the Service User before progressing with the complaints process.