“When dealing with adults who lack capacity and children, a medical professional often has to make a difficult choice between safeguarding confidentiality and making disclosures to protect the particular patient’s welfare”.

CRITICALLY DISCUSS the extent to which the legal framework has so far succeeded when addressing the balancing exercise referred to above and whether confidentiality for these groups of patients is sufficiently safeguarded.

1. Introduction:

In this paper, through reference to the jurisprudence of the courts of England and Wales, the author will critically discuss the extent to which the law has managed to strike an appropriate balance between protecting the rights of children and adult patients who lack capacity, on the one hand; and, allowing medical professionals to make disclosures when such disclosures are deemed to be in the best interests of their patients, on the other.

The structure of this paper will be as follows: First, the author will examine the legal basis for any rights to confidentiality and non-disclosure that are conferred on children and adult patients who lack capacity, by the law of England and Wales. Second, the author will identify the legal provisions and/or common law decisions which purport to allow medical professionals to act in contravention of these rights, when to do so is deemed in the best interests of their patients. Third, the author will perform a review of the jurisprudence of the courts of England and Wales to determine the legal scope of these justified derogations. Fourth, the author will perform a literature review to indentify the extent to which medical professionals, in practice, manage to apply their discretion appropriately. Finally, the author will review the various mechanisms in place, if any, to review the conduct of medical professionals and hold accountable any medical professionals who fail to adhere to the limits of the discretion conferred upon them by the law of England and Wales.

2. What is/are the legal basis/bases for the right to confidentiality enjoyed by children and adult patients who lack capacity?

2.1 Children patients who lack capacity and their ‘right(s)’ to confidentiality:

Before the rights of this select group of patients to confidentiality are examined, it is first important to define what is meant by ‘children patients who lack capacity’. In this context, we are referring to the ‘capacity’ to provide legally valid consent to their doctors or other medical professionals to disclose their confidential medical information to third parties.

Under statute, a child patient will be presumed to possess sufficient capacity to consent in the regard the moment that they have attained the age of 16 years. This is provided by section 8 of the Family Law Reform Act 1969, subsection (1) of which provides: “The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.”

Of course, this is merely a presumption. A particular child patient may have characteristics which invalidate this consent, even though they are over the age of 16. For example, if they qualify as a person who lacks consent under section 2 of the Mental Capacity Act 2005, which provides that: “[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” It matters not whether this ‘impairment’ or ‘disturbance’ is temporary or permanent^[1], but assessments must be made on the basis of the actual decision-making capacity of the individual^[2], rather than through reference merely to the type of condition or impairment which that child is suffering from^[3]. Such assessments are to be made on the balance of probabilities^[4], i.e. a child patient who is between 16 and 18 years old will be deemed to lack the necessary capacity to consent if it is more likely than not that he or she is unable to fully appreciate the implications of the decision which needs to be made.