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11. Confidentiality and Record Keeping

1. Confidentiality

All staff are required to maintain the confidentiality of information about people in their care.

Personal information should not be disclosed unless:

  • the person agrees; or
  • there is a legal obligation to do so; or
  • there is an over-riding public interest.

Where a person lacks capacity the Mental Capacity Act test of ‘best interests’ may also justify disclosure. In all instances however the provisions and restrictions of the Data Protection Act 2018 must be complied with.

An assessment of capacity may require the sharing of information amongst health and social care workers. If a person lacks capacity to consent to disclosure, whether or not it would be in their best interests to disclose the information must be decided. Only as much information as necessary should be divulged and the decision should be circumstance specific.

Attorneys appointed under personal welfare LPAs can decide whether information can be disclosed and should normally be consulted before any information is shared. Where it is not possible to consult them (for example, where urgent treatment is necessary) staff must act in the patient’s best interests and advise attorneys of actions taken as soon as practicable.

Disclosure of and access to information can be complex. The Information Commissioner has issued guidance on the Data Protection Act 2018 and the Mental Capacity Act. Also, professionals and organisations have their own codes of conduct, policies and procedures about confidentiality. These are supported by experts such as Information / Data Protection Officers in Social Care Services and Caldicott Guardians in NHS organisations.

More detailed guidance and sources of information on confidentiality can be found at:

2. Record Keeping

All staff working in health or social care must record accurately details of decisions made about the assessment of mental capacity, and best interests. Whilst many minor day to day decisions relating to a person’s care may be recorded in case notes, significant decisions relating to assessment of capacity and best interests should be recorded in line with individual organisations requirements. An example of a recording tool is included in the appendix to this document. This form may be used alone but good practice suggests that it is supported by entries in the process/case notes and an accompanying care and support plan.

It should be remembered that records can be referred to in future in the event of disputes or as part of legal proceedings, therefore in all cases care should be taken to ensure detailed and accurate recording takes place.

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