Confidentiality guidance: Disclosures about patients who lack capacity to consent

1. 57. There is advice on assessing a patient’s mental capacity in our guidance Consent: patients and doctors making decisions together and in the Adults with Incapacity (Scotland) Act 2000 and Mental Capacity Act 2005 codes of practice. There is no specific mental capacity legislation for Northern Ireland.

1. 58. For advice in relation to children and young people, see our guidance 0-18 years: guidance for all doctors.
2. 59. When making decisions about whether to disclose information about a patient who lacks capacity, you must:
   1. (a) make the care of the patient your first concern
   2. (b) respect the patient’s dignity and privacy, and
   3. (c) support and encourage the patient to be involved, as far as they want and are able, in decisions about disclosure of their personal information.

1. 60. You must also consider:
   1. (a) whether the patient's lack of capacity is permanent or temporary and, if temporary, whether the decision to disclose could reasonably wait until they regain capacity
   2. (b) any evidence of the patient's previously expressed preferences
   3. (c) the views of anyone the patient asks you to consult, or who has legal authority to make a decision on their behalf, or has been appointed to represent them
   4. (d) the views of people close to the patient on the patient’s preferences, feelings, beliefs and values, and whether they consider the proposed disclosure to be in the patient's best interests, and
   5. (e) what you and the rest of the healthcare team know about the patient's wishes, feelings, beliefs and values.
2. 61. If a patient who lacks capacity asks you not to disclose personal information about their condition or treatment, you should try to persuade them to allow an appropriate person to be involved in the consultation.²⁵ If they refuse, and you are convinced that it is essential in their best interests, you may disclose relevant information to an appropriate person or authority. In such a case you should tell the patient before disclosing the information and, if appropriate, seek and carefully consider the views of an advocate or carer. You should document in the patient’s record your discussions and the reasons for deciding to disclose the information.
3. 62. You may need to share personal information with a patient’s relatives, friends or carers to enable you to assess the patient’s best interests. But
   that does not mean they have a general right of access to the patient’s records or to have irrelevant information about, for example, the patient’s
   past healthcare. You should also share relevant personal information with anyone who is authorised to make decisions on behalf of, or who is appointed to support and represent, a mentally incapacitated patient.²⁶

Disclosures when a patient may be a victim of neglect or abuse

1. 63. If you believe that a patient may be a victim of neglect or physical, sexual or emotional abuse, and that they lack capacity to consent to disclosure, you must give information promptly to an appropriate responsible person or authority, if you believe that the disclosure is in the patient’s best interests or necessary to protect others from a risk of serious harm. If, for any reason, you believe that disclosure of information is not in the best interests of a neglected or abused patient, you should discuss the issues with an experienced colleague. If you decide not to disclose information, you should document in the patient’s record your discussions and the reasons for deciding not to disclose. You should be prepared to justify your decision.