Original URL: http://www.theregister.co.uk/2007/10/01/foi_deceased_records/

Dead woman's medical records case could undermine FOI law

Privacy boffin weighs in on legal grey area

By OUT-LAW.COM

Posted in Law, 1st October 2007 09:54 GMT

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.

Bluck took her case to the Information Commissioner, who said the information should not be released. She appealed to the Information Tribunal, which said the commissioner had been right.

"We have decided that the medical records should not be disclosed because they fall within the scope of FOI Act section 41 and are accordingly exempt from disclosure," said the tribunal.

Section 41 of the Act says: "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."

The tribunal said it was not disputed that the information was collected from a third party, namely Karen Davies herself.

Privacy specialist Sue Cullen of Pinsent Masons, the law firm behind OUT-LAW.COM, said this definition of information belonging to a third party, if adopted by the courts, could invalidate much of the FOI Act itself.

"What I find odd is that the hospital says it obtained a record from another person and did not generate it for itself. But all organisations generate information from other people," she said. "A company's human resources files are generated from information collected from me, from other people, from the company's own records."

Cullen said that definition could render most files held by organisations exempt from freedom of information legislation. "If that exemption is going to work as it is supposed to and we are going to take that attitude and exempt anything generated with information from somewhere else, it means that the exemption will apply to an awful lot more of the information belonging to an authority than we thought."

Cullen said the area is sensitive and difficult because there is very little law relating to it.

"Data protection law is a non starter because it is about living individuals, the FOI Act is perhaps over the top in saying that anyone should have access to someone's medical records after death," she said.

"I would say there is a hole in the law. Human rights law can't protect the deceased, and with the law of confidentiality, the information has to be confidential in nature and there has to be a person to whom a duty of confidence is owed," she said.

In contrast to the law in England and Wales, the Scottish Freedom of Information Act contains a specific provision for cases such as Karen Davies's. Section 38 of that Act says: " Information is exempt information if it constitutes … a deceased person’s health record".

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