CONFIDENTIALITY

Confidentiality can be a complex issue in mental health services as professionals have to weigh up the right of the person to have their personal information safeguarded, the concerns of close family and friends to know what is happening to the person they care about and, in some situations, the wider interests of public safety.

Under common law, personal information must not be disclosed without the consent of the person concerned. However, if the person is not capable of giving consent, their doctor, or other health or social services¬†professionals concerned with their treatment and care, can disclose information if they believe that it is in the person’s best interest.

Such health and social care professionals may also have to consider breaching confidentiality in certain circumstances, for example, if ‘in the public interest’ non-disclosure would result in a violent incident.

Professional organisations such as the Royal College of Psychiatrists, General Medical Council, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting and the Care Council for Wales have produced guidelines for their members relating to confidentiality.

The Mental Health Act does not have a specific section relating to confidentiality, and neither is confidentiality a “guiding principle” in the Mental Health Act Code of Practice for Wales. This reflects the fact that, in differing circumstances, professionals have to weigh up different considerations. However, there are some important references to confidentiality in the Code and we summarise some key ones here. (The figures in brackets refer to the appropriate paragraph in the Code.)

Approved Mental Health Professionals (AMHPs), when assessing whether a person should be detained under the Act, must make themselves known to “the patient’s family, carers or friends present” as well as to the patient (2.33), but “the patient should ordinarily be given the opportunity of speaking to the AMHP alone” (2.37). In some circumstances, for example in relation to Section 3, an AMHP has a statutory duty to inform the Nearest Relative if the person is being compulsorily detained (2.43). However, at the same time, the AMHP has to consider whether doing this would infringe “the patient’s right to respect for their privacy” (2.44).

Similarly, Hospital Managers are required to give the Nearest Relative important information relating to a person’s detention (22.39 to 22.42). However, at the same time, a person can request that such information is not given to their Nearest Relative under Section 132 of the Act (22.41).

Chapters 22 and 23 of the Code emphasise the importance of involving the person’s Nearest Relative and Carers. However, other references in the Code make it clear that this involvement is “subject to the person’s right to confidentiality” (for example 2.63 and 2.67). Similarly, information will inevitably have to be circulated between care and support agencies in the care planning process, but this should be on a ‘need-to-know’ basis only and the person concerned should be involved at all stages.

Where a person has the support of an Independent Mental Health Advocate (IMHA), professionals should give the IMHA all relevant information. In turn IMHAs themselves are then required to follow an “agreed confidentiality policy” (25.21).

These references point to the balancing act that professionals have to follow. On the one hand, they should involve close family and carers in decisions about a person’s treatment and care as fully as possible and, importantly, they should not use “patient confidentiality” as an excuse not to include such family and carers.

But, on the other hand, where a person clearly does not want their family or carers to be informed and included, the person’s right to privacy and confidentiality should be respected, unless there is some other overriding imperative.

FURTHER INFORMATION

All the major documents relating to the Mental Health Act and the Code of Practice, including information leaflets, are available on the Health of Wales Information Service (HOWIS) website which can be accessed by this link:

www.wales.nhs.uk/mentalhealthact1983