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Confidentiality beyond the grave
18 October 2007
The duty of confidentiality is central to the relationship
between doctor and patient to ensure that a patient discloses
everything relevant to diagnosis and treatment. Given this
significance, it is perhaps surprising that until very recently
there has been no legal authority as to whether a duty of
confidentiality survives a patient's death. The position however,
has now been clarified following a recent appeal to the Information
Tribunal.
The case concerned Karen Davies, who died at Epsom General
Hospital in 1998 aged 33. Her mother sought access to Karen's
medical records. However, the Trust refused to disclose these
because her husband refused consent.
The Data Protection Act 1998 only relates to information about
living individuals. Deceased patients’ records are, however, public
records under the Public Records Act 1958 and the appellant
therefore requested the records under the Freedom of Information
Act 2000 ("FOIA"). The Trust continued to withold disclosure,
claiming that the information requested was exempt under section 41
of the FOIA. This provides that information is exempt from
disclosure if it has been obtained by a public authority from
another person and the disclosure of the information to the public
would constitute a breach of confidentiality actionable by that or
any other person.
It was common ground between the parties that the medical
records contained information provided from a third party, namely
Mrs Davies. The crux of the issue was whether disclosure of the
records would amount to a breach of confidentiality. The Tribunal
concluded that the public interest in maintaining confidentiality
in the medical records of a deceased patient outweighed, "by
some way", the countervailing public interest in disclosure.
Whilst it was acknowledged that there was no legal authority as to
whether a duty of confidentiality survives death, the Tribunal
accepted that the doctor/patient relationship might be undermined
if a patient believed that information might be released to the
public after death. Having accepted the obligation of
confidentiality as an essential part of the doctor/patient
relationship, it would be unconscionable for a doctor to disclose
such information, even after death.
On this basis, the Trust would breach the duty of
confidentiality owed to the deceased if it disclosed her medical
records to her mother and that breach would be actionable by the
deceased's personal representatives. Accordingly, the Tribunal
ruled that medical records constitute exempt information for the
purposes of FOIA section 41 and should not be disclosed.
Given that the duty of confidentiality is the cornerstone of a
doctor/patient relationship, this decision is perhaps not
surprising. The Tribunal's decision supports an earlier decision by
the Information Commissioner. It also supports the ethical guidance
from the Department of Health and the General Medical Council that
the duty of confidentiality continues, even after the death of a
patient.
The decision will be welcolmed by Trusts as clarifying that a
deceased's medical records are exempt from disclosure under the
FOIA. However, the decision goes further in providing legal
authority that a duty of confidentiality will survive death. This
should reassure patients to speak candidly with their doctor. It
will also provide medical practitioners with clarity about the
nature of information they hold, even after a patient's death.
For completeness, Trusts should be aware that the duty of
confidentiality does not affect the right of access to a deceased's
medical records by the personal
representative and any person who may have a claim arising out of a
patient’s death under the Access to Health Records Act 1990.
That is why Mrs Davies' husband could get the notes in this case,
while her mother could not.
For more information or advice, please contact Amelia or Simon.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.