Are public authorities going too far in attempting to limit disclosure to families at the expense of the safety of vulnerable adults?
I have represented an extremely vulnerable adult in an application by a relevant local authority concerning disclosure of his medical records to his parent.
The client’s parent was his primary and sole carer. The public authorities argued that his medical records should not be disclosed to this carer because he had not consented to share his medical information with his family.
We noted a number of fundamental flaws in the approach to this issue by the public authorities.
Firstly, they had not properly considered his capacity to make this decision. Our client was able to clearly verbally communicate, and this often makes it difficult for professionals with limited experience in assessing capacity to identify that the patient lacks capacity in a given area, particularly where the patient has a borderline or nuanced presentation.
However, where considering whether or not to share a patient’s medical information with their families (who are often primary carers or significant support systems), professionals should consider whether mental health patients a) have capacity to make this decision and b) if not, whether refusing to disclose this information would itself present a risk to them as it may obstruct or delay the provision of life saving mental health treatment. Ultimately it may therefore be in the person’s best interests for this information to be shared.
Secondly, the public authorities had not properly considered the risks to him of not sharing this information. Many patients do not want information that highlights high risks to their care and safety to be shared with families.
However, the family members are often already well aware of this information. Some service providers can take an irrational approach in their judgment of the hierarchy of risks. For example, in some cases, public bodies consider that the risk to a patient’s right to privacy outweighs the potential risk of suicide. Therefore, they are not taking a proportionate or sensible approach to the risk analysis when considering whether or not it is in the patient’s best interests to limit disclosure of information. In these cases, there can be too much emphasis placed by NHS services on a patient’s data security, which can lead to extremely difficult situations for family members to deal with, and in some cases tragic loss of life.
Thirdly, the public authorities had not asked which information the adult specifically did not wish to share with his family and took a blanket approach to this question. When asked, patients often do not want specific aspects of their care to be shared but are content for primary or larger aspects to be shared (e.g. medications and medical appointments), which allows carers to facilitate care, thus removing the information sharing point as an issue in the patient’s care.
The judge in this case denied their application to withhold the records from his parent and carer.
The judge also held that the public authorities should cover our costs of the application equally.
Threshold for non-disclosure applications
It should be noted that there is a very high threshold for public authorities to be successful in such non-disclosure applications. The key question for determining whether to withhold information is whether it is ‘necessary’ to do so,
The test of necessity applies in exceptional circumstances and sets a high bar. In KK v LCC [2020] EWCOP 64, Cobb J noted that:
- … As Munby J said in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 ('Re B') at §89:
"Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary" (emphasis by underlining added).
Several years later, Sir James Munby P in C v C returned to this point (at §20), applying these principles specifically to proceedings under the MCA 2005, and said
"Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do…”
Summary
These should not be blanket applications. Any applications should be clear about what specific information should not be shared and this can only be justified where there is a “significant risk of harm” to a patient. As an example, in other cases, this threshold has only been reached in circumstances where significant abuse is alleged, and so it is difficult to see how the withholding of information can be justified in cases where the perceived harm to the patient falls short of this level of risk.
Moreover, the risk to the patient’s safety of withholding this information from a carer should be fully taken into account when considering this issue.
Find out more about Irwin Mitchell's expertise in supporting vulnerable adults and families at our dedicated protecting your rights section.
