Working with doctors Working for patients

What if the patient lacks capacity?

An adult has capacity to make a decision if they can understand, retain and weigh up information and communicate their wishes. Capacity needs to be assessed for a specific decision, at the time it needs to be made.

Adult patients (those age 16 or over) are presumed to have capacity to make decisions about sharing their information unless it is clear that, having been given all appropriate help and support, they cannot make that decision, or communicate their wishes.

We give guidance on assessing capacity in our guidance Consent: patients and doctors making decisions together. We have also developed an online mental capacity decision tool, which you can find at www.gmc-uk. org/Mental_Capacity_flowchart.

Doctors may disclose personal information if it is of overall benefit to a patient who lacks the capacity to make the decision. It is important to support and encourage the individual to be involved, as far as they want and are able, in decisions about disclosure of their personal information.

It is also important to consider:

  • any evidence of the patient’s previously expressed wishes. This evidence can come from medical records, those close to the patient, or from the healthcare team
  • the views of anyone the patient asks you to consult, or anyone who has legal authority to make the decision on the patient’s behalf, or who has been appointed to represent the patient.

You can find more detailed guidance at paragraphs 41 to 49 of Confidentiality.