Disclosing medical records after death
Background
Dr Kaur is a GP who cared for Mrs Brooks at her home during her last illness.
Soon after her death, Dr Kaur met with Mr Brooks, the deceased patient’s husband, about the care Mrs Brooks received.
She answered in an honest and open manner his questions about the nature of Mrs Brooks’ illness, the decisions to stop active treatment, and the palliative care provided.
Scenario
Dr Kaur receives a letter, from solicitors acting for Mr Brooks, a few weeks later. It asks 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.
Dr Kaur reviews Mrs Brooks’ records. She notices that they contain information about a referral for an abortion, dating from before Mrs Brooks’ marriage to Mr Brooks.
The records also contain information provided more recently by Mrs Brooks’ daughter, Beverley, who was for a time concerned about her mother’s 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 does not think that Mr Brooks knows about any of this. She is concerned about breaching her deceased patient’s confidence and that, if she were to send the whole record to Mr Brooks’ solicitors, confidential information irrelevant to the purpose would be disclosed.
Dr Kaur had 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.
Dr Kaur 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.
What the doctor did
Dr Kaur 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.
What the doctor had to consider
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The duty of confidentiality persists after a patient has died (Confidentiality, paragraph 134).
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There are circumstances in which doctors must disclose relevant information about a patient who has died. 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 (Confidentiality, paragraph 135). See our key legislation factsheet for more detail.
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Doctors should not refuse to listen to patients’ relatives on the basis of confidentiality, but should make clear that they might need to tell the patient about information they have received from others – for example, if it has influenced their assessment and treatment of the patient (Confidentiality, paragraphs 39 - 40).
