Dead woman's medical records case could undermine FOI law
Privacy boffin weighs in on legal grey area
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A dead woman's medical records should not be released because a duty of confidentiality survives her death, the Information Tribunal has ruled. The decision backs an earlier ruling by the Information Commissioner.
A privacy specialist, though, has said the decision defines exemptions to Freedom of Information (FOI) legislation too widely, and was reached because there is no cohesive body of law relating to the rights of dead people.
The tribunal had to make the decision about whether the duty of confidentiality could survive a person's death despite admitting there was no case law or legal authority on which to base its decision.
A witness in the proceedings from the General Medical Council said it had a policy stating that there could be moral, ethical, or professional duties compelling a doctor to maintain confidentiality after a patient's death, but confirmed there was no legal obligation to do so.
The tribunal heard that if the duty of confidence did not survive a patient it could undermine the relationship of trust between doctors and patients. It was compared in the hearing to legal professional privilege.
The tribunal ruled that the duty of confidence between the patient and the doctor must survive her death. "We agree with the [hospital] trust and the Information Commissioner that, as a matter of principle, the basis of the duty in respect of private information lies in conscience," said the ruling.
The case concerned Karen Davies, who died at Epsom General Hospital in 1998 at the age of 33. In 2003 it emerged that the hospital had admitted liability in Davies' death and paid a substantial compensation settlement to her widower Richard Davies on behalf of himself and the couple's two children.
Karen Davies's mother Pauline Bluck has since sought access to Davies's medical records to establish what happened. The hospital refused to release them without the permission of her next of kin, Richard Davies, who refused permission.
COMMENTS
Next of Kin and Snooping Historians
I, for one, would rather not have my medical records a matter of public record just because I shove off. I would rather leave my family with making the decision to release info, as it may affect them in some way.
The presidential letters comment is a nice support for this as those letters are generally made public by the decedent or their relatives (by donation to the Smithsonian or the specific presidental library). Just look at the fight the family of James Joyce is having related to his letters. Thats a bit extreme, because the guy is trying to censor already public info, but he has a right for the estate to profit from Joyce's work.
Can we no longer carry our secrets to the grave?
In the past it was not uncommon for individuals (especially public figures) to have a proviso in their Wills stating that personal information shall not be released until 50, 75 or 100 years after their death. Presumably, this is to protect the privacy, reputation or mental well-being of the decedent's survivors.
Saying the equivalent of 'OK, she's dead... let's go through her stuff!' comes across as rather like vultures scavenging a carcass. (My apologies to families and friends of any departed loved ones who've had to face this issue.)
Here in the States, this topic is undergoing continuous debate, thanks to the infamous "Health Insurance Portability and Accountability Act" or HIPAA. To read an excellent discussion of the issues, Google "HIPAA Till Death Do Us Part?" from May 2004 HIPAAdvisory newsletter. Does a surviving child have the right to overturn the dead person's wishes? Does the survivor represent the deceased *or* their estate?
Stay tuned....
-Austin
Re: So who *can* read these records?
Ah, thanks Keith. I did indeed misread the article and got the impression that the next of kin had been locked out. Having been relieved of this misapprehension, the whole affair strikes me as rather unnoteworthy.
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