Information sharing for those without capacity – Best Practice guidance from the Public Guardian

Representatives of those without capacity, either acting as an attorney or deputy, will welcome the recent intervention of the Public Guardian in connection with sharing important medical information about the protected party.

Published on 10 November 2021, the new guidance is aimed at NHS providers to promote timely information sharing with those with a legally founded interest in the material.

The guidance is careful to point out that access to this information does not confer the deputy with authority to make welfare decisions, if those are not specified in the Order of appointment. Rather, information sharing enables the deputy to commission or arrange an appropriate package of support to meet those needs which have been separately determined by health and care professionals.

The distinction between gathering information to determine a person’s needs as opposed to applying information about known requirements to commission a service, is often misunderstood by health and care organisations. The NHS and partner organisations such as social services routinely state that medical and care records will only be disclosed to representatives holding health and welfare attorneyship or deputyship. To illustrate this point, in 2018 Wrigleys pursued a request for the release of continuing healthcare records of a client, which was eventually escalated to the office of the Information Commissioner. Although the ICO upheld our complaint, the NHS organisation did not comply with the ICO decision by releasing the records as requested.

This experience may be a familiar one to both professional and lay representatives alike, who find themselves unable to make fully informed best interest decisions due to a lack of pertinent information about the person’s care needs. Professional deputies are expected to adhere to the standards published by the Office of the Public Guardian in 2015. These standards include obligations to review the protected party’s care arrangements to ensure they are suitable to meet their needs and are providing good value for money. This standard applies equally to deputies for property and financial affairs or health and welfare.

Access to the protected party’s medical records, such as care plans and assessments provides vital information to the deputy to discharge this standard. This key material enables the deputy to make fully informed decisions to meet the person’s needs. It is hoped that NHS providers engage positively with the new guidance, to promote best interests of some of our most vulnerable members of society.

For those seeking further information, the guidance can be viewed here.