A privacy specialist, though, has said that 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
that 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 that 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 that 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
that the information should not be released. She appealed to the
Information Tribunal, which said that 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 that 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 that 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 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 that 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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