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Disclosing information without consent

There are a small number of circumstances where you might need to pass on information without consent, or when you have asked for consent but the service user has refused it

If the service user is unable to give their consent

In some circumstances it may not be possible to get consent from a service user to share information. For example, in some emergency situations, they may be unable to communicate or give consent because they are very unwell or unconscious. In other circumstances, they may not have capacity to give consent.

As discussed earlier, whether a service user has capacity will depend on a number of things, including their mental capacity and age. If a service user is unable to give consent, you may have to disclose information if it is in their best interests. We have outlined earlier in this guidance what you will need to consider when deciding whether it is in their best interests.

Also, you may need to share information with those closest to them (such as a carer or family members) so that you or other health and care professionals can decide what is in their best interests. It is also reasonable to assume that they would want those closest to them to be kept informed of their condition, treatment or care, unless they have previously said otherwise.

You should speak to your employer (if you have one) or professional body for further guidance.

Public interest

You can also disclose confidential information without consent from the service user if it is in the ‘public interest’ to do so. This might be in circumstances where disclosing the information is necessary to prevent a serious crime or serious harm to other people. You can find out whether it is in the public interest to disclose information by considering the possible risk of harm to other people if you do not pass it on, compared with the possible consequences if you do. This includes taking account of how disclosing the information could affect the care, treatment or other services you provide to the service user.

You should carefully consider whether it is in the public interest to disclose the information. If you are unsure, speak to your manager or employer (if you have one), or your union or reference organisation. You may also want to get legal advice.

You need to be able to justify a decision to disclose information in the public interest (or a decision not to disclose information) so it is important that you keep clear records.

Even where it is considered to be in the public interest to disclose confidential information, you should still take appropriate steps to get the service user’s consent (if possible) before you do so. You should keep them informed about the situation as much as you can. However, this might not be possible or appropriate in some circumstances, such as when you disclose information to prevent or report a serious crime.

Page updated on: 24/03/2021