Medical disclosure information to attorneys and deputies
Guidance for NHS regarding disclosure to individuals holding either a Lasting Power of Attorney or a deputyship.
Applies to England and Wales
This document has been prepared to provide guidance around disclosure of medical and care information to attorneys and deputies to enable them to make best interest decisions on behalf of the donor.
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, 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.
This is not the same as the right of access under data protection law (Subject Access Request) as defined in Article 15, UK General Data Protection Regulation and Section 45 Part 3 Data Protection Act 2018, whereby a person can request all the information that a data controller has regarding them.
While UK data protection law does not prevent an individual making a subject request via a third party, data controllers must be sure that the third party making the request is entitled to act on behalf of the individual.
There are no specific statutory provisions enabling a third party to exercise subject access rights on behalf of an individual who does not have the mental capacity to manage their own affairs, but the Information Commissioner’s Office advises that “it is reasonable to assume that an attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority”.
Assessing the validity of the request
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?
I should also:
- get written confirmation of these things
- make sure the disclosure is legal
- make sure the disclosure is justified and balances 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.
Where NHS, police and local authority staff urgently need confirmation the person has an attorney or deputy, they can ask OPG by submitting an urgent request to search our registers.
The following reasons are examples of when a rapid search is required of the register:
- moving a person out of hospital care to an alternative setting in order to release their bed for care of patients
- ascertaining best interest treatment decisions for an individual who is in hospital
- ascertaining best interest decisions for an individual whilst undertaking their statutory safeguarding duty
- obtaining additional information about a person’s wishes and feelings which may be detailed in an LPA such as a person’s choice on receiving life sustaining treatment
- contact details of the person within their care or responsibility
- contact details of parties legally entitled to act on behalf of a person – such as an attorney or deputy.
- administration of the Covid vaccine (to be included in the revised guidance which is presently underway)
Please email OPGurgent@publicguardian.gov.uk using the email template below.
Please include:
- the subject line ‘Initial safeguarding enquiry’ or ‘Urgent enquiries’ as needed
- the template at the bottom of the page, containing the individual’s details
- your email signature including your job title and team name
Email template
Dear OPG
I am requesting a search of the OPG registers to help safeguard an adult at risk. I cannot get the information from the individual as they do not have mental capacity.
Please search the OPG registers for any information about this person:
Name:
Date of Birth:
Address:
For non-urgent enquiries to find out if someone has a registered attorney or deputy – use of OPG100 form.
Any requests must be sent from an accredited email address.
These are the kind used by the NHS and local authorities (e.g. @nhs.uk and @gov.uk).
If possible, please don’t send your request using encrypted email software such as Egress. This slows down the search process and you may not get your results as quickly. Our gov.uk email address is secure.
OPG aim to respond to urgent requests within 24 hours, Monday to Friday. Requests made over the weekend will be dealt with on Monday as a priority.
Requests that are not for safeguarding enquiries must use the OPG100 form
Requests that are about COVID-19 patients should use the dedicated search
When dealing with a request from an attorney, health professionals should satisfy themselves that the donor did not include an instruction in the instrument that specifies this type of data should not be disclosed to their attorney. This information can be requested in a search request in Section 4 of the form at the link above.
Example
John made a property and affairs LPA making his son David his attorney, specifying David could act for him from the date of registration.
Five years later, John lost mental capacity following a brain injury caused by an accident. John was in hospital for several months. When there was no longer a clinical need to keep him in hospital, he was discharged to a care home as he was unable to look after himself at home.
John has resided at the care home for a year and there has been little improvement in his mental capacity. David needs to make a decision regarding whether he should sell John’s house to pay for the care home fees as John’s savings have dwindled.
David knows if John became well enough he would want to return home
David decides to contact medical professionals who have cared for his father.
In this case, health professionals should disclose any relevant reports they hold to help David make an informed decision regarding how to act in his father’s best interest.
Annex A
The five principles are:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that it cannot be assumed that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
- People must be supported as much as possible to make a decision before anyone concludes that they cannot make their own decision. This means that a person caring or supporting the individual should make every effort to encourage and support the person to make the decision for themselves. If a lack of capacity is established, it is still important that the person is involved as far as possible in making decisions.
- People have the right to make what others might regard an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.
- Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
- Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms.