Letters Liverpool care pathway

New NHS Constitution could cause conflict with professional guidance on patient confidentiality and the Mental Capacity Act

BMJ 2012; 345 doi: http://dx.doi.org/10.1136/bmj.e7630 (Published 13 November 2012) Cite this as: BMJ 2012;345:e7630
  1. Ben Mearns, consultant physician1
  1. 1Surrey and Sussex Healthcare NHS Trust, East Surrey Hospital, Redhill RH1 5RH, UK
  1. ben.mearns{at}sash.nhs.uk

Spence does a good job in defending the Liverpool care pathway, although he does say that the pathway must be used “with the consent of all involved.”1

Marsden in his article in the Telegraph entitled “Families win new rights over death pathway patients” quotes the secretary of state for health as saying that “patients and their families have a basic right to be involved in discussions and decisions affecting their end of life care.” The article also suggests that the NHS Constitution will require doctors to speak with families to “obtain their consent.”2

These changes could introduce two major conflicts for doctors.

Firstly, General Medical Council guidance is clear that patients have a right to confidentiality, and that patients may choose to exclude their families from certain information.3

Secondly, the Mental Capacity Act 2005 states that patients with capacity must consent for themselves and those lacking capacity must be treated in their “best interests.” This second requirement includes consideration of family views, but it does not extend to the granting of consent unless expressly stated in a lasting power of attorney.4

The implication that changes will be made to the NHS Constitution that would be at odds with current professional guidance from the GMC and could conflict with the Mental Capacity Act is worrying.

The proposed new NHS Constitution has now been released for consultation and is far removed from the media rhetoric.5 Patient autonomy, confidentiality, and consent are preserved with rights of discussion extended to families only “where appropriate.” Doctors will therefore follow current guidance, but they will undoubtedly face increased difficulty in guiding families through the death of a relative because confidence will be shaken, and some family members may now believe that they have rights that they do not have.


Cite this as: BMJ 2012;345:e7630


  • Competing interests: None declared.