Patient confidentiality extends beyond death

The Information Tribunal has ruled that medical records of a dead woman should not be released, because there is still a duty of confidentiality in its contents following death.

In his ruling, Chris Ryan, the Information Tribunal deputy chairman, said the duty of confidentiality between patient and doctor should be maintained, even after death.

The ruling was made following an appeal by Pauline Bluck in relation to her dead daughters medical records, held by Epson and St Helier University Hospital NHS Trust.

“We agree with the trust and the Information Commissioner that, as a matter of principle, the basis of the duty in respect of private information lies in conscience… we have decided that the medical records should not be disclosed because they fall within the scope of the Freedom of Information Act section 41 and are accordingly exempt from disclosure,” said the Information Tribunal.

The ruling follows a lengthy Freedom of Information request from Pauline Bluck, mother of Karen Davies, a patient who had died at Epsom General Hospital in 1998. Five years later, Bluck discovered that the hospital’s treatment of her daughter had not been satisfactory, that it had admitted liability for her daughter’s death and had reached a settlement with her widower, on behalf of himself and two children of the marriage, under which a substantial compensation payment had been made.

Davies’ husband had refused consent for Bluck to see her late daughter’s medical records and so an appeal process to the Information Commissioner began.

The overall conclusion of the Commissioner was that the health records in respect of Karen Davies should not be disclosed. His reasons were that they were subject to an obligation of confidence and that the obligation was capable of surviving the death of the person to whom the records related.

He concluded that, as an action could therefore be brought by the personal representatives of the deceased person if the information were to be disclosed otherwise than under the FOIA, the exemption provided under section 41 applied.

Section 41 of the FOIA states: “Information is exempt information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”

Ryan said that this applied even after Davies’ death in relation to her medical records: “We conclude that a duty of confidence is capable of surviving the death of the confider and that in the circumstances of this case it does survive.”

Despite this he warned: “We are concerned that public authorities should not feel that they are free to take a relaxed attitude to the analysis of available exemptions to disclosure during the Information Commissioner’s investigation, on the basis that they will be able to raise new grounds at the appeal stage.”

In reaching their conclusion, the tribunal heard evidence from Dr Andrew Hoy, a consultant in palliative medicine at the trust.

Ryan said this evidence helped them to reach a conclusion on the case: “We believe that the public interest in maintaining confidentiality in the medical records of a deceased outweighs, by some way, the countervailing public interest in disclosure.

“We accept that it is frequently helpful for doctors to discuss the circumstances of a person’s death with his or her close relatives but believe, on the basis in particular of the evidence of Dr Hoy, that maintaining the confidentiality of the medical records will not impede the professional approach which doctors currently adopt in this area.”

A Ministry of Justice spokesperson told EHI: “We believe this is the first case to look into the validity of medical records following the death of a patient, which will set a precedent for any future cases. The topic is of a particular sensitive nature, as there is no statute law in place that sets in stone medical obligations to preserving confidentiality after death.”

Links

Information Tribunal decision notice

Jon Hoeskma