Confidentiality and adults without capacity

Laws around incapacity vary across the UK – but ultimately, you must consider the best interests of a patient who lacks capacity to make their own decisions.

  • Every adult must be presumed to have mental capacity to make their own decisions about disclosure of personal information, whatever their condition.
  • If you want to disclose patient information, you need to know if they have mental capacity to make that decision at that time, so you should assess capacity in the usual way.
  • You will need to consider several factors including their ability to understand what information you want to disclose and the consequences and effect of disclosure.

If an adult lacks mental capacity to consent to disclosure, and the disclosure cannot wait until they regain capacity, you may disclose information if it is of overall benefit to the patient.

You must support and encourage the patient to be involved as far as they can and need to respect their dignity and privacy while making their care your first concern.

Disclosing information

When deciding whether disclosure is of overall benefit to the patient, you must take into account any evidence of the patient's previously expressed preferences. You also need to consider what you and the healthcare team know of the patient's wishes and values as well as the views of those close to the patient and anyone legally appointed to represent them (which varies across UK jurisdictions).

If you disclose information about a patient who lacks capacity, keep a note of your capacity assessment and your justification for disclosure.

If you're unsure, discuss with a colleague or call our 24-hour medico-legal helpline for further advice.

Useful links

GMC guidance on confidentiality

Mental Capacity Act Code of Practice - England and Wales

Adults with incapacity: code of practice for medical practitioners - Scotland

Mental Capacity Act (Northern Ireland) 2016

This page was correct at publication on 03/05/2022. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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