Adult safeguarding and confidentiality – disclosing information to the Office of the Public Guardian

Knowing when you can disclose sensitive patient information is a notoriously complex area. Sarah Pickering, advisory case manager at Medical Protection, considers some recent queries from members regarding disclosures to the Office of the Public Guardian

Confidentiality is central to the trust that exists between patients and doctors. The GMC, in Confidentiality: good practice in handling patient information, states that you have a legal and ethical duty to keep patients’ personal information confidential, but confidentiality is not absolute. The GMC states you can disclose personal information without breaching duties of confidentiality when any of the following circumstances applies:

• The patient consents to the disclosure.
• The disclosure is of overall benefit to a patient who lacks the capacity to consent.
• The disclosure is required by law or has been approved under a statutory process.
• The disclosure can be justified in the public interest.

In some circumstances, you are obliged to disclose information to comply with a statutory requirement. Recent calls to the Medical Protection advice line have queried such disclosures in response to requests from the Office of the Public Guardian (OPG). This organisation is a government body that supports members of the public who might lack the mental capacity to make decisions for themselves, for example about their health and finance. Its work supports delivery of the Mental Capacity Act 2005 in England and Wales and the Adults with Incapacity (Scotland) Act 2000 in Scotland. The OPG is responsible for:

• Registering powers of attorney, enabling people to appoint who they want to make decisions for them in the event of incapacity.
• Investigating and taking action where there are concerns about an attorney or deputy (or guardian in Scotland) or where the property or finances belonging to an adult lacking capacity appear to be at risk.
• Maintaining the public register of:

• people who have been granted powers of attorney (England, Wales and Scotland)
• deputies (England and Wales)
• guardianship and Intervention Orders and authorisations granted under the Access to Funds Scheme (Scotland).

I have received a request for the disclosure of a patient’s medical records from a Court of Protection special visitor who acts for the OPG. What should I do?

In this query, the OPG in England and Wales had instructed a consultant psychologist, who was a Court of Protection special visitor, to perform a mental capacity assessment on a patient and write a report. The psychologist requested the patient’s medical records in order to do this. There was no signed patient consent attached to the request, so the GP member contacted Medical Protection to ask whether the request was appropriate and whether the practice could disclose the records.

Under section 58 5(a) of the Mental Capacity Act 2005, the OPG in England and Wales has the powers to “examine and take copies of any health record” in order to carry out its functions. Section 61 (5)(a) allows a Court of Protection visitor (which in this case is the psychologist) the power to also “examine and take copies of any health record”. Taking this into consideration, the psychologist has the power to request these records to carry out their functions under the Act.

In accordance with GMC guidance on confidentiality, the practice would be permitted to disclose this information as it is a disclosure that is required by law. Paragraphs 17-19 of the guidance provides further advice on disclosing patient information when it is required or permitted by law, with paragraph 18 in particular stating:

“You should satisfy yourself that the disclosure is required by law and you should only disclose information that is relevant to the request. Wherever practical, you should tell patients of such disclosures, unless that would undermine the purpose, for example, by prejudicing the prevention, detection or prosecution of serious crime.”

It is important to only disclose the minimum amount of information necessary. In this case, the GP was advised to find out which aspects of the records the psychologist required for the mental capacity assessment. It is also important to ensure compliance with data protection legislation by removing any information that relates to a third party besides a medical professional, along with any information that could be considered seriously harmful to the patient or any individual.

If you are concerned about disclosing information to the OPG or any other relevant body without informing the patient (or the patient’s Lasting Power of Attorney for health and welfare), you can contact the OPG to raise your concerns.

I have been asked by the OPG to provide information for the purpose of investigating concerns relating to the management of a patient’s property and financial affairs. What should I do?

This request came from an Investigator at the OPG for England and Wales and was directed to a GP practice. In this case, the patient did not have capacity to be able to consent to the disclosure of their personal information.

According to section 58 (5)(a) of the Mental Capacity Act (as mentioned above) the OPG has the powers to “examine and take copies of any health record” in order to carry out its functions, while section 61 (5)(a) allows a Court of Protection visitor (in this case, the investigator) the power to also “examine and take copies of any health record”.

However, in this particular case, the records had not been requested; a series of questions had instead been posed by the OPG. The disclosure in this case may therefore not have been covered by a strict interpretation of the Mental Capacity Act 2005.

Under paragraph 9(b) of the GMC guidance on confidentiality, disclosures can be made if it would be of overall benefit to a patient who lacks the capacity to consent. The requested information could be disclosed without a legal basis if the GP felt it would be in the patient’s best interests to disclose this information. The GP was advised to seek further information from the OPG on the nature of the case, to help make a decision on whether the disclosure would be in the patient’s best interests. The GP was also advised to consider paragraphs 41-49 of the GMC guidance on confidentiality, which gives guidance on disclosures about patients who lack the capacity consent.

Regardless of whether sensitive information is disclosed or not, an entry should be made in the patient’s notes on the reasons for the decision.

As with the previous case, any disclosure of this information should exclude third party information and anything that could be deemed seriously harmful to the patient or any other individual. Only the minimum amount of information relevant to the request should be disclosed.

Medical Protection also reviewed the series of questions posed by the OPG. One related to the mental capacity of the patient in 2017. The GP was advised to be cautious in relation to this question, as this could not be answered unless the GP had assessed the patient’s capacity in 2017 for the specific purpose in question (whether she had the capacity to make the decision to stop paying her care home fees).

If you receive similar correspondence in relation to disclosures to the OPG or any other medicolegal matter, and you would like advice from Medical Protection, contact our advice line on 0800 561 9090

References

Gov.uk - Office of the Public Guardian - About us

Office of the Public Guardian (Scotland) - What we do

GMC: Confidentiality: good practice in handling patient information

Mental Capacity Act 2005: section 58