Disclosure of Confidential Information to Protect the Patient: The Role of Legal Capacity in the Evolution of Professional Guidance

Abstract

There are a number of exceptions to the general rule that patients at risk of harm because they withhold consent to doctors disclosing their confidential information should be respected. Disclosure may be mandated by law or the patient may lack capacity under the Mental Capacity Act 2005. Beyond this, the law is vague and professional guidelines differ in approach. The public interest defence operates to protect third parties. The General Medical Council's 2009 guidance on confidentiality accepts that it might also apply to prevent harm to the patient. This article argues that to do so could be contrary to legislative intent and has potential to contravene the patient's human rights. The article proposes that decisions taken in the best interests of patients should be limited to those situations in which patients lack capacity to consent. It explores the recently extended ambit of the test for capacity at common law which may facilitate a clearer approach to disclosure decisions which will improve compliance with the liberal ethos of the Mental Capacity Act and aid conceptual consistency.