The MCA requires the decision-maker to consult with anyone who knows the person who may lack capacity (MCA section 4). This means that a decision-maker may be speaking to several family members and friends. (Part 8: Best interests decisions)
There is concern that this may breach confidentiality. For instance, seeking a neighbour’s views about someone’s wishes to live at home rather than go into care, gives the neighbour more information about the person’s condition than is appropriate.
It is important to:
Everybody is protected by the Data Protection Act 1998. This requires organisations to:
All NHS services and local authorities are protected by a Caldicott Guardian – someone appointed to ensure the organisation handles information correctly. This requires the organisation to justify why they use confidential information, using a minimum of information when necessary, on a need-to-know basis and requires all staff to understand their responsibilities and comply with the law.
This page was last modified: 3rd Jan 2014