Confidentiality and adults without capacity

Patients with mental disorders or learning disabilities

Patients with mental disorders or learning disabilities do not necessarily lack capacity to consent to disclosure of confidential information. You should assess their capacity in the usual way.

You will need to consider a number of factors including their ability to understand the consequences and effect of disclosure. If they lack capacity to authorise disclosure, you should consider any reasons you think it would be in their interests to disclose information to carers, relatives or any other third party.

If a patient under 18 lacks capacity, information may be disclosed with the authority of whoever has parental responsibility.

For patients 18 and over who lack capacity, the requirements vary in England, Wales and Scotland.

England and Wales - patients over 18

Under the Mental Capacity Act 2005, an independent mental capacity advocate (IMCA) will be appointed for a patient who needs serious treatment but lacks capacity and has no one to speak on their behalf.

A competent patient may create a lasting power of attorney (LPA), giving someone the power to make general or specified health and welfare decisions at a time in the future when the patient lacks capacity.

The court of protection has powers to declare whether someone has or lacks capacity, and to appoint a deputy to make decisions on their behalf.

IMCA's, attorneys and deputies may need information to enable them to act or make decisions on behalf of their patient. You should provide only what is reasonably necessary to enable the person to deal with the issue in question, where there is a need to know and where the disclosure is in the patient's best interests.

Scotland - patients over 18

Welfare attorneys can make decisions on behalf of adults lacking capacity and should be involved in the decision making process.

Best interests

In deciding whether or not to disclose confidential information about patients who lack capacity, you must act in good faith and in the patient's best interests. You should take into account all relevant factors relating to the individual patient including health and welfare, relationships with parents/siblings/children/carers and the position of trust you have with the patient.

It's important to keep detailed contemporaneous notes specifying why you concluded the patient did not have capacity to give consent and why you believe you were justified in disclosing information.

If there is any doubt about a patient's competence to give or withhold consent, you should seek the opinion of another doctor such as the patient's GP or senior psychiatrist in charge of the patient's care.

Relatives, friends, carers and others

Sharing information with others is normally done only with the patient's express consent. However, if the patient lacks capacity, you may need to share information with relatives, friends or carers to enable you to gather relevant information and assess the patient's best interests, or with an IMCA, an attorney who is able to make health and welfare decisions, or a deputy appointed by the court of protection.

In Scotland, healthcare workers should discuss treatment options with and obtain authority for disclosure of information on behalf of the patient from the welfare attorney.

Uncontactable or unconscious patients

If information is released about a patient who is uncontactable or unconscious at the time of disclosure, there is a risk that the patient may later object to the disclosure. A decision to disclose should, if possible, be deferred until consent can be obtained, except when delay might cause serious harm to the patient or others, in which case limited disclosure may be justifiable.

If you are asked to disclose information about an uncontactable or unconscious patient for care or treatment purposes, the following steps should be taken, if there is time and the patient's health and safety are not compromised.

  • Ask for the request in writing and keep clear, detailed notes of all communications.
  • Seek the views of those close to the patient, in particular anyone nominated by the patient, without breaching confidentiality.
  • Outline to them the information required and the reasons why immediate disclosure is considered necessary.
  • If there is not time, you may consider disclosing the minimum information necessary to provide care in the patient's best interests.
  • If you are unsure how to proceed, discuss the request with a colleague or call the MDU 24-hour medico-legal helpline.

This guidance was correct at publication 03/09/2019. It 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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