A 91-year-old man had been discharged from hospital. He has mild dementia and, although he gets confused in the night, during the day he retains his capacity. However, it was clear that this situation was likely to worsen over time.
His son called the patient's GP to say he was worried about his father's deterioration and asked for copies of his medical records. The GP said he needed to speak to the patient about this but would do so at the next opportunity.
On his next visit, the patient was lucid and the GP explained that his son has expressed concern about him and asked for copies of the records. The patient responded that he was happy for the GP to discuss any aspect of his health with his son, adding he realised his son was worried that his 'mind was going'.
The GP took the opportunity to ask the patient whether there was anything he wanted the team to know about his future care and whether there was anyone he wished to be approached to make decisions if he lacked capacity in the future. The patient replied he would trust his son to do this for him.
The GP then explained that this could be formally arranged by granting his son lasting power of attorney and with the patient's consent, he agreed to discuss this with his son.
The patient and his son later contacted the family's solicitor.
Appropriate communication with the patient's family, friends and other carers is also important. For example, you may need them to provide a vital history about a fit they have witnessed.
The patient's nearest and dearest often provide invaluable reassurance and support to a loved one and they will want to be kept informed so they can understand how best to help.
In the community setting the family may be the only carers for elderly or infirm relatives.
However, any information provided to a family member must be within the context of the duty of confidentiality owed to the patient. The GMC's new guidance, Confidentiality (2009), now includes a section entitled 'sharing information with a patient's partner, carers, relatives or friends'.
The GMC guidance begins by saying it is important to establish early on what information the patient would want to be shared, in what circumstances and with whom. It is especially important to record the wishes of patients whose capacity may later become impaired.
The guidance echoes that given in the GMC guidance Consent: patients and doctors making decisions together, which discusses advance care planning and the need to encourage patients with conditions likely to affect their capacity to make decisions, to discuss their wishes and concerns with their healthcare team.
This may include discussion about whether they would wish to nominate a person to make decisions for them in case they lose capacity. Relevant information should be shared with a person authorised to make decisions on behalf of, or who has been appointed to support and represent, an incapacitated patient.
This would include anyone with lasting power of attorney or an independent mental capacity advocate.
Keeping carers informed
If a patient lacks capacity and has not indicated otherwise, the GMC says it is reasonable to assume they would want those closest to them to be kept informed about their general condition and progress.
The GMC says this does not mean they have a general right of access to the patient's records, or to receive information that is not relevant to the situation. You must make the patient your first concern and respect their privacy and dignity. Although the patient may lack capacity, you should involve them in making decisions about information sharing as much as they are able.
A patient's family or friends may also want to discuss their concerns about the patient. Such discussions often provide helpful information and listening to the concerns of the patient's family and friends does not itself conflict with a doctor's duty of confidentiality.
However, you should make it clear that you cannot guarantee you will not raise these points with the patient and that you may need to identify the source of the information, for example if you feel it may significantly influence your assessment or the treatment provided.
You should also be aware that the patient might consider it a breach of trust for you to listen to others, particularly if they have said they do not wish you to speak with those individuals.
Record of discussion
You must make a careful note of any discussion with a patient's relatives, carers or friends or concerning the patient's wishes in the patient's clinical record.
This is vital to preserve the patient's confidentiality; to ensure the information provided is consistent; and also to serve as a record of what was discussed in case there is a future complaint from the patient about an alleged breach of confidence, or from the family about a perceived lack of communication.
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- Dr Cuzner is a medico-legal adviser for the Medical Defence Union