Children, capacity, deceased patients and complex relationships

Apply confidentiality principles where decision-making authority is complex: children and young people, adults lacking capacity, proxies, relatives and deceased patients.

• Respect the confidentiality rights of children and young people who can make the relevant decision.
• Identify the role of parental responsibility without assuming unlimited access.
• Use the relevant capacity framework when an adult cannot decide about disclosure.
• Avoid treating next of kin as a universal legal status.
• Apply continuing confidentiality principles after death.

Children and young people are entitled to confidentiality. Where a young person has capacity to make the relevant information decision, their wishes should be given appropriate weight; parental responsibility does not create an unlimited right to every clinical detail.

For adults, start with the presumption of capacity. If a person lacks capacity for the particular information decision, disclosure should be considered under the relevant national capacity framework and the patient’s interests, rights and prior wishes.

The UK does not have a universal 'next of kin' status that automatically gives authority to consent to disclosure or access records. Legal authority can arise from parental responsibility, welfare powers, lasting powers, guardianship, court appointment or specific legislation.

Capacity law differs across the UK. Stage 3 must not present the Mental Capacity Act 2005 as applying to Scotland or Northern Ireland. Northern Ireland remains particularly complex because its 2016 Act has been only partially commenced.

After death, UK GDPR no longer applies to the deceased person as a living data subject, but confidentiality can continue professionally and at common law. Access to records may be governed by separate legislation and the rights/risks of surviving people.

Use CLEAR consistently across information decisions.

1. Clarify the purpose and recipient.
2. Locate the professional and legal authority.
3. Evaluate necessity, proportionality and the minimum information needed.
4. Ask about consent, objections, capacity, statutory duties or powers, and public-interest factors.
5. Record the reasoning, disclosure, advice and safeguards.

CLEAR is an educational scaffold, not a statutory legal test.

Scenario 1. A 16-year-old asks that sexual-health information not be disclosed to a parent.

Reasoning prompt: clarify purpose and recipient; locate authority; evaluate necessity and minimum information; ask about consent, objections, capacity and risk; record and escalate proportionately.

Scenario 2. An adult with dementia lacks capacity to decide whether information should be shared with a relative involved in care.

Reasoning prompt: clarify purpose and recipient; locate authority; evaluate necessity and minimum information; ask about consent, objections, capacity and risk; record and escalate proportionately.

Scenario 3. A bereaved family asks for the full record of a deceased patient, including sensitive third-party information.

Reasoning prompt: clarify purpose and recipient; locate authority; evaluate necessity and minimum information; ask about consent, objections, capacity and risk; record and escalate proportionately.

• Parents always have full access to a child’s record.
• Next of kin can make all information decisions.
• The Mental Capacity Act 2005 applies throughout the UK.
• Confidentiality ends at death.

• What exactly is the purpose of using or disclosing the information?
• Who is asking, and have I verified identity and role?
• What professional, common-law, statutory and data-protection authority applies?
• Can the purpose be achieved with less or anonymised information?
• Does the patient expect this use, have they consented or objected, and does that matter in this context?
• Is there a nation-specific rule, local policy or specialist route I need to check?
• What should I document, and who should I consult if uncertain?

Optional reflection: Do not enter identifiable patient, colleague or employer information. Identify one situation in your practice where confidentiality, data protection and local governance could easily be conflated. How would CLEAR improve the reasoning?

• Children and young people have confidentiality rights.
• Capacity is decision-specific and should not be assumed absent.
• Parental responsibility is not an unlimited information entitlement.
• Next of kin is not a universal legal authority.
• Adult disclosure decisions must use the relevant national capacity framework.
• Scotland has a distinct incapacity framework.
• Northern Ireland requires current commencement checks.
• Overall benefit/best-interest reasoning should consider privacy as well as care.
• Confidentiality can continue after death.
• Third-party information may limit post-death disclosure.

Check current versions for time-sensitive decisions.

• R2 - GMC: Disclosing patients’ personal information: a frameworkOpen official source
• R14 - GMC: Protecting children and young people: confidentiality and sharing informationOpen official source
• R15 - GMC: 0–18 years: principles of confidentialityOpen official source
• R9 - GMC: Managing and protecting personal informationOpen official source