Medico-legal - Patients' records after death

A duty of confidentiality continues after a patient's death.¹ In deciding whether and how much personal information should be disclosed, doctors should take into account the purpose of the disclosure and also, whether the information would be of benefit to, or cause distress to, the patient's partner or family.

Two important points to remember are that doctors should not disclose information if a patient has previously asked for information to remain confidential, and information identifying third parties, such as the patient's family members or friends, should not be disclosed, unless the third party's consent is obtained.

When to disclose
There are specific circumstances where relevant information should be disclosed. These are:

• If a coroner or procurator fiscal requests information for the purposes of an inquest or fatal accident inquiry.
• When disclosure is required by law, authorised under section 251 of the NHS Act (2006) or it is justified in the public interest.
• For the purpose of national confidential inquiries or local clinical audit.
• On death certificates.
• For public health surveillance (anonymised wherever possible).
• If a parent wants information about the circumstances, or cause, of a child's death.
• If a partner, close relative or friend asks for information about the circumstances of an adult's death and there is no reason to believe that the adult would have objected to the disclosure.
• If a person has the right of access to records under the Access to Health Records Act (1990) or the Access to Health Records (Northern Ireland) Order (1993).

Applying for disclosure
The Access to Health Records Act (1990) outlines the rights of certain individuals to apply for access to a patient's health records after they have died.²

It states that a personal representative, or any person, who may have a claim arising out of the death of a patient may apply for access to the deceased patient's records.

The personal representative is defined as being the executor of the deceased patient's will or the administrator of the estate if there is no will.

When not to disclose
The Act also states what information should not be disclosed:

• Information relating to a third party. However, this does not include information provided by other health professionals involved in the care of the patient.
• Information that is likely to cause serious harm to the physical or mental health of an individual.
• Information that doctors believe the patient may have provided with the expectation that it would be kept confidential. There may be a written record in the notes to this effect, and such information should not be disclosed.

Doctors may also withhold information that does not appear to be relevant to the purpose of the disclosure, for example, in the event of a claim they may choose to disclose only information relevant to that claim rather than the whole clinical record.

Case report
Mrs F, a 55-year-old patient of Dr B, died suddenly from a subarachnoid haemorrhage. The next day the police attended the surgery asking Dr B to provide a statement regarding Mrs F's recent health. They also requested a full copy of Mrs F's medical records.

Dr B clarified that the police were acting in the capacity of coroner's officers. He therefore provided a statement to them and copies of the patient's medical records.

A few days later, Mrs F's husband came to see Dr B, he was very upset. He wanted to talk through the events leading up to his wife's sudden death. As Dr B felt that the disclosure of personal information would be of benefit to Mr F in trying to come to terms with his wife's death, he discussed the events leading up to Mrs F's death.

Two weeks later, Dr B received a letter from Mrs F's 23- year-old daughter Miss F, who was also a patient at the practice. She wanted to know if her mother's subarachnoid haemorrhage could be the result of a hereditary condition.

Her maternal grandmother had also died of a subarachnoid haemorrhage.

Dr B felt that providing the information would be of benefit to Miss F. He met with her to discuss the cause of death further and agreed to refer Miss F to the local neurologist for further advice.

Two months later, Dr B received a request from solicitors acting for Mr F, for copies of all Mrs F's medical records. A claim for clinical negligence was being considered.

Dr B immediately contacted his medical defence organisation for advice. As it was a letter of claim, the request had to be acknowledged within 14 days and answered in full within four months.

After taking advice, Dr B reviewed the records in detail and removed third party information provided by a friend who had been concerned about Mrs F's response to marital tension 15 years ago.

He also removed reference to Mrs F's miscarriage 10 years previously, as he knew that Mrs F had not wanted her husband to find out. Dr B then passed on a copy of the records to the solicitors, within the required time frame.

• Dr Birch is a medico-legal adviser at the Medical Protection Society

1. GMC. Confidentiality (2009). Paragraphs 70-72; www.gmc-uk.org/guidance/ethical_guidance/confidentiality.asp

2. Access to Health Records Act (1990). Paragraph 3,1; www.legislation.gov.uk/ukpga/1990/23