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Lead practice to address legal and ethical conflicts that arise between maintaining confidentiality and information sharing

This page is designed to answer the following questions:

NOTE: This page has been quality assured for 2023 as per our Quality Assurance policy.

For this assessment criterion, you will be required to lead practice that addresses legal and ethical conflicts that may arise between maintaining confidentiality and information sharing.

In the previous section, we touched upon the importance of confidentiality and some of the circumstances that may lead to information being shared that would usually be considered confidential. Below, we will examine some other dilemmas that may occur in working practice and some of the things that will need to be considered.

Relatives expecting information without consent

Although relatives of an individual may expect that information about their loved one will be freely given by health and social care professionals, we must always seek consent from the individual themselves before sharing.

If an individual has given consent for information about them to be shared with names individuals, this information should be recorded and stored securely so that other workers are able to access it. This can be a lot more practical than seeking consent every time a relative makes a request for information.

If an individual does not give their consent, then their wishes and privacy must be respected. This may result in relatives becoming upset or angry so it is important to be compassionate, empathetic and understanding in our communication when explaining the reasons that information may not be disclosed.

It is important that staff understand their obligations relating to sharing information with relatives and they may approach you for support when they have such a dilemma. You will be required to advise team members how they should manage the situation and may even have to speak to the relatives if the staff member does not feel comfortable doing it themselves.

Capacity issues

As a leader, you must have a good understanding of the Mental Capacity Act 2005 so that you are able to address issues relating to the mental capacity of the individuals that are in your care. Thorough knowledge of this legislation can be obtained by reading the Mental Capacity Act 2005 Code of Practice.

Most importantly, individuals must be assumed to have capacity unless it can be shown to the contrary. To have the capacity to make a decision, an individual must be able to understand the information that is provided to them and retain it long enough to make an informed decision. They must also be able to communicate their choice.

If it has been shown that an individual does not have the capacity following a mental capacity assessment, any decisions made on their behalf must be made in their best interests. An advocate or lasting power of attorney (see below) may be appointed to make decisions on an individual’s behalf if they are unable to do so themselves. In addition, Advance Care Planning can be used to ensure that an individual’s wishes are recorded whilst they have capacity so that they can be considered at a future date when they may no longer have capacity.

Consent issues

All of your team members should understand their duty with regard to obtaining consent from the individuals that they provide care for. We touched on this above when we explored gaining consent before passing information onto relatives but consent must also be obtained before carrying out any care activity. Team members must explain what they are going to do, including the benefits and risks, so that service users can make an informed choice about whether they wish for it to go ahead. If an individual refuses treatment, their wishes must be respected.

Team members may approach you for support if they are concerned that a service user is refusing to provide consent for an activity that will be beneficial to them. You may advise them to try again later or ask another person to attempt to gain consent and carry out the task instead. A team member may express that they have concerns about a service user’s current mental capacity and you may be called upon to arrange for a mental capacity assessment.

Next of kin vs nearest relative

An individual that is receiving care or treatment will be asked to provide the name and contact details of their next of kin. This can be anyone that the individual feels close to and they will usually be kept informed of the individual’s care (with the individual’s consent). The next of kin have no legal rights, however, they may be consulted about the individual’s wishes if they are incapacitated.

The nearest relative is legally defined under the Mental Health Act 1983 and is usually a spouse, parent or child. The nearest relative has legal rights under this legislation including:

  • Requesting mental capacity assessment to decide if the individual should be detained under the Mental Health Act
  • Objecting to the individual being detained under the Mental Health Act
  • Applying to discharge the individual from the Mental Health Act
  • Requesting an independent advocate to support the individual
  • Be given information about the individual

An individual’s next of kin and nearest relative may be the same person or different people. It is important for team members to understand the difference between these terms so that they are able to perform their duties correctly.

Power of attorney – lasting vs enduring

Power of attorney is a legal document that gives a named person the right to make decisions on an individual’s behalf if they are unable to make their own decisions or no longer wish to.

An ordinary power of attorney gives a person the right to manage some or all of an individual’s financial affairs whilst they still have mental capacity. This may be used, for example, whilst an individual is staying in hospital temporarily or to withdraw money from the Post Office if the individual is unable to do so themselves.

An enduring power of attorney (EPA) gives a person the right to make financial decisions on behalf of an individual if they lose mental capacity. EPAs were replaced by Lasting Power of Attorneys (LPAs) in 2007, however, if an EPA was signed before October 2007, it can still be valid.

A lasting power of attorney (LPA) is more flexible than an EPA because separate LPAs can be signed for health & welfare and finance & property. They come into effect if an individual loses mental capacity or no longer wishes to make their own decisions.

Depending on their role, team members may need to understand the differences between these types of power of attorney and may need to come to you for advice when they are unsure.

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