Confidentiality vignette: disclosure after death

Should a GP release a deceased patient's medical records?

Dr Kaur is a GP who cared for Mrs Brook at her home during her last illness, until her recent death.

Soon after her death, Dr Kaur met with Mr Brooks, the deceased patient’s husband, about the care Mrs Brooks received, answering in an honest and open manner his questions about the nature of her illness, the decisions to stop active treatment, and the palliative care provided.

A few weeks later, Dr Kaur receives a letter from solicitors acting for Mr Brooks asking for a copy of Mrs Brooks medical records. The letter states that Mr Brooks is ‘considering a claim arising from his late wife’s death’ and describes him as her ‘personal representative’. The letter refers to his right of access under the Access to Health Records Act 1990.

While she was alive, Dr Kaur never discussed with Mrs Brooks her views about access to her records following her death, and there is no note about this in her records.

Mrs Brooks’ records contain information about a referral for an abortion, dating from before her marriage to Mr Brooks. The records also contain information about Mrs Brooks that was provided more recently by her daughter, Beverley, who was for a time concerned about Mrs Brooks’ mental health. Nothing came of that, and there is no suggestion in the record Mrs Brooks was even aware of her daughter’s concerns. Dr Kaur wonders if she should have agreed to listen to Beverley’s concerns without Mrs Brooks’ knowledge.

Dr Kaur does not think that Mr Brooks knows about any of this. She is concerned about breaching her deceased patient’s confidences and that, if she were to send the whole record to Mr Brooks’ solicitors, confidential information irrelevant to the purpose would be disclosed.

She decides to send the solicitors records relating to Mrs Brooks’ final illness, which she has already discussed with Mr Brooks, and which is all she believes to be relevant to the claim. She considers that Mrs Brooks would not have wanted information about her termination to be disclosed in the circumstances. She is also concerned that the information about Mrs Brooks’ mental health would reveal information about her daughter (as the source of concerns about Mrs Brooks’ mental health) and is worried about the harm a disclosure of this information could cause. Even if she were to remove the daughter’s name from the records, Dr Kaur thinks it might be obvious to Mr Brooks who reported the concerns.

GMC guidance

• The duty of confidentiality persists after a patient has died (paragraph 70)
• An exception to the duty of confidentiality exists where the law requires disclosure (paragraphs 17, 21-22).
• The Access to Health Records Act 1990 and Access to Health Records (Northern Ireland) Order 1993 provide for access to health records by a deceased patient’s personal representative and any person who may have a claim arising out of the patient’s death (paragraph 71).
• This is not a general right, and access should be limited to information of relevance to the claim. Doctors should seek clarification about the nature of the claim or advice about their duties in this regard if they are unsure. Access should not be given to information the patient would not have expected to be disclosed, or to information provided by an individual, other than the patient or a health professional involved in the patient’s care, who could be identified from that information, unless they consent (paragraph 71).
• Doctors should not refuse to listen to patients’ relatives on the basis of confidentiality; but doctors should make clear that they might need to share with a patient information they have received from others, e.g. if it is relevant to a recommended treatment (paragraph 66).