Dead woman's medical records case could undermine FOI law

Privacy boffin weighs in on legal grey area

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

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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.