Medical Disclosure
Medical Disclosure

Medical Disclosure

The Office of the Public Guardian in England and Wales (OPG) has issued new guidance (Nov 2021). This is for NHS and Social Care staff regarding the disclosure of a donor’s medical information to attorneys and deputies.

The five principles of the Mental Capacity Act 2005 govern how OPG and other authorities (including health and social care agencies) support individuals who lack mental capacity.

This includes assisting attorneys and deputies in the exercise of their duty in supporting the donor. As well as, by providing relevant information in a timely manner. The principles can be found at Annex A.

An attorney holding a Lasting Power of Attorney (either Property and Affairs or Health and Welfare) (LPA) or a court-appointed deputy should be able to access relevant medical records of the vulnerable adult.
Attorneys need to be able to make decisions in P’s best interest as their legal representative. They will likely be unable to do so without P’s medical records.
Therefore, the relevant information can be disclosed to enable them to discharge their role as attorney or deputy
The organisation (the data controller) who holds the requested information should consider the following questions, as laid out in Chapter 16 of the MCA Code of Practice.
  • Do I (or does my organisation) have the information?
  • Am I satisfied that the person concerned lacks capacity to agree to disclosure?
  • Does the person requesting the information have any formal authority to act on behalf of the person who lacks capacity?

Am I satisfied that the person making the request:

  • is acting in the best interests of the person concerned?
  • needs the information to act properly?
  • will respect confidentiality?
  • will keep the information for no longer than necessary?
  • should I get written confirmation of these things?
  • is the disclosure legal?
  • is the disclosure justified, having balanced the person’s best interests and the public interest against the person’s right to privacy?

Where NHS and Local Authority staff wish to seek confirmation that the person requesting the information is an attorney or deputy, they can ask OPG if the person requesting the information is an attorney or deputy by submitting a request to search our registers.

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