Loophole could force release of deceased's records

Tags: A Confidentiality Data FOI GP GPC GPs Information Information Commissioner iS

25 Oct 2005

A loophole in the Data Protection Act means GPs could be forced to disclose the records of deceased patients, GP representatives are warning.

The British Medical Association’s General Practitioner Committee reported after its monthly meeting last week that there are problems with how the Data Protection Act applies to deceased patients which means their records may fall within the categories of information that have to be disclosed under the Freedom of Information Act in England.

The GPC says the Department of Constitutional Affairs is working with the Information Commissioner to investigate ways in which exemptions in the Freedom of Information Act may be used to prevent disclosure of deceased patients’ records. The GPC says it hopes guidelines will be produced in the near future.

Dr Peter Holden, a GPC negotiator, told EHI Primary Care that he would refuse to comply with such an FoI request and believed most GPs would take a similar stance.

He added: “At the end of the day the confidentiality of the patient is paramount and that extends beyond the grave.”

The GPC has reported that it also expects guidance from the Department of Constitutional affairs on disclosure logs to be published soon together with guidance from the Information Commissioner on refusal notices.

The GPC says practice publication schemes will need to be reaccredited by the Information Commission in 2007 and that submissions from GPs will be accepted from next June until October 2007.

Readers Comments

DPA doesn't cover deceased records?

28 Oct 05 10:04

It was my understanding that the DPA only covers records of living individuals and therefore surely the DPA isn't relevant for deceased patients' records?

access to deceased patient records

28 Oct 05 10:50

The DPA does only cover living individuals. Access to deceased patients' records may be obtainable under the Access to Health Records Act.

Access to deceased records

timdwwilson@btinternet.com

28 Oct 05 16:29

The Data Protection Act 1998 repealed the majority of the Access to Health Records Act 1990, with the exception of those parts of AHRA 1990 that applied to the deceased. Access is only granted to records to next of kin or anybody who has a claim against the deceased that requires access to the records.

Have the GPC done their homework?

carla.bryan@virgin.net

28 Oct 05 18:20

Yes, the Data Protection Act 1998 only covers living individuals but that, I presume, is their point. I suspect what they have picked up on is that the exemption from releasing information that falls under DPA does not cover records or information for those who are deceased.

It would appear, however, they have not fully done their research into the FoIA though. Section 44 (Prohibitions on Disclosure) exempts any requirement to release information where it is prohibited by statute or common law. Not only does the common law duty of confidentiality thus prevent release of deceased health records under FoIA but, as a previous comment rightly pointed out, the Access to Health Records Act prohibits their release except under specific circumstances - although that is not just to next of kin, but to anyone having a claim arising from the person's death, the deceased's personal representative or the Executor of their estate. Common law would prevent any other personal information provided in confidence by or about deceased individuals being released as may well article 8 of the HRA (right to privacy) too, though I haven't checked to confirm the latter applies to the deceased.

Classic case, as with Data Protection, of the legislation not being fully understood I think. Or perhaps misinterpretation in the reporting?