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Confidentiality – Disclosures relating to patients unable to consent

1 Jul 2021


You owe a duty of confidentiality to all your patients, past or present, even if they are adults who lack capacity. You may be asked to provide information from the medical records of patients who are incapable of giving consent, are aged under 16, or have died. This factsheet gives you further information about dealing with these circumstances.

Children and young people with capacity

Many young people have the capacity to consent to the disclosure of their medical records. If the child or young person (under 16 years of age) is able to understand the purposes and consequences of disclosure, they can consent or refuse consent to the disclosure. You should discuss disclosing the information with them and release it only with the child or young person’s written consent.

If a child or young person under 16 refuses consent, you should nevertheless disclose the information if this is necessary to protect the child, young person or someone else from serious and imminent harm.

Examples include situations where you consider that the child or young person is at risk of neglect or abuse, the information would assist in the prevention, detection or prosecution of a serious crime, or where the child or young person may be involved in behaviour that might put themselves or others at risk of serious harm. It would also include a situation where a child or young person has refused to allow a carer to be told of a condition or treatment, from which there is a risk of a serious complication arising.

You should give careful consideration to the child’s reasons for refusal of disclosure, and explain to them your reasons for disclosing the information and what you intend to disclose – unless doing so would undermine the purpose of the disclosure. You should involve the child or young person in the decision and ensure this is documented – including notes on how the decision was reached.

Children, young people and adults without capacity

Immaturity, illness or mental incapacity in a patient poses its own problems, if it stops the patient giving valid consent to disclosure. If such a patient expresses a wish not to have their details disclosed to a third party, then you should attempt to convince them to involve an appropriate person in the consultation.

If the patient continues to refuse consent, and you feel it is in their best interests to disclose the relevant information, then you must seek the consent of the person legally designated to give such consent. The patient must also be kept fully informed of this.

If no-one has been legally designated to grant consent, then the National Health Act decrees that the following persons can do so instead, in order of precedence: a spouse or partner, parent, grandparent, adult child or adult brother or sister.

Notes should be made in the patient’s records of the steps taken to obtain consent, and the reasons behind the decision to disclose the information.

Any registered healthcare practitioner who on reasonable grounds concludes that a child has been abused, sexually abused or deliberately neglected, must report it and make a disclosure, even if the child has not provided consent. The disclosure should be made – in the prescribed form and manner – to a designated child protection organisation in the provincial department of social development or a police official.

If you suspect an adult person lacking the capacity to consent to be the victim of neglect or physical, sexual or emotional abuse, and they are not in a position to withhold or give consent to disclosure, then the appropriate statutory body or responsible person must be informed. The patient should also be notified about the intended disclosure; where appropriate, so should those with parental responsibility. However, if you feel that notifying a parent or guardian would not be in the best interests of the child or neglected patient, then you should refrain from doing so – but you must be able to justify your actions.

In terms of the Sexual Offences Amendment Act, a sexual offence committed against a patient younger than 18 has to be reported to a police official. The commission of a sexual offence will include the sexual molestation or assault of a child, inducing encouraging or forcing a child to be used for the sexual gratification of another person, using a child in or exposing a child to sexual activities or pornography, procuring or allowing a child to be procured for commercial sexual exploitation.

Disclosure after a patient’s death

Your duty of confidentiality extends beyond the patient’s death. However, there may be circumstances when disclosure may be justified. In the event of receiving a complaint or a request to make a disclosure concerning the medical records of a deceased patient, the disclosure may only be made in terms of an order of court, or with the written consent of the next of kin of the deceased (or the executor of the deceased’s estate). Any disclosure must be justifiable and the reasons for doing so must be fully documented.

To whom can you disclose information?

There are various circumstances in which you may be required to disclose information about patients who have died. These include:

  • In connection with an inquest. The relevant information should be provided
  • On death certificates. It is the law to complete these honestly and fully.

A situation could arise where there is a conflict of interest between a number of parties affected by a patient’s death. For example, you should only release information to an insurance company, when it is deciding whether to make a payment under a life assurance agreement, with the consent from the next-of-kin, or from the executor of the deceased’s estate. If the deceased patient has already consented to such a release before his/her death, then this is sufficient too.

For more information, see Confidentiality – General principlesConfidentiality - Disclosures without consent and Confidentiality – Disclosures relating to patients unable to consent.

Further information