Is the patient’s son entitled to access his mother’s confidential information? Where a patient lacks capacity clinicians should consider what action is in the patient’s best interests.

Dr Rachel Birch, medicolegal consultant, answers a member’s query

We have a 79 year old patient who lives alone and has Alzheimer’s disease. Her son has approached the practice and asked for a copy of her medical records, in order to assist an application for funding for her care. A GP from our practice has assessed the patient as lacking capacity to make a decision with regards to the disclosure. Is the patient’s son entitled to access his mother’s confidential information?

This scenario is not uncommon, where a patient lacks capacity and a Lasting Power of Attorney (LPA) has not been appointed. It is important for clinicians to consider what action is in the patient’s best interests.

The General Medical Council (GMC) states:

“You may disclose personal information if it is of overall benefit to a patient who lacks the capacity to consent.”¹

In order to make the decision about whether to disclose such information, clinicians must ensure that the patient’s care is the priority and that the patient’s dignity and privacy is respected. Patients should be supported and encouraged, as far as they want and are able, to be involved in decisions about the disclosure of their personal information.

The GMC goes on to state that the views of people close to the patient should be taken into account and whether they consider the proposed disclosure to be of overall benefit to the patient.

In this situation, it appears that the son’s intention may be to use relevant information within the medical records to assist an application for funding and/or to support an appeal regarding her current funding arrangements. Furthermore, any such application may well have the aim of providing stability to the patient by ensuring that she is in an appropriate place of residence, with the appropriate funding. This would appear to be in the patient’s best interests.

However, it would be prudent for the patient’s GP to discuss the request further with the patient’s son, so that he can explain in more detail why and what information is needed, and the GP can be satisfied that the disclosure would be in the patient’s best interests. The discussion and the justification for any disclosure should be documented within the medical record.

It is unlikely that the son would require access to the patient’s complete medical record, but it would be reasonable to disclose the relevant parts of the medical record to complete the application. The disclosure should remain proportionate to its purpose. Alternatively, the GP may wish to offer a medical report, summarising the relevant facts in order to support a funding application.

References

1. GMC. Confidentiality: good practice in handling patient information (Updated 2018). Available from https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/confidentiality