back to article Dead woman's medical records case could undermine FOI law

A dead woman's medical records should not be released because a duty of confidentiality survives her death, the Information Tribunal has ruled. The decision backs an earlier ruling by the Information Commissioner. A privacy specialist, though, has said the decision defines exemptions to Freedom of Information (FOI) legislation …

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Boffin?

I don't think a privacy expert can be called a boffin can they? Let's not dilute the word.

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It seems very strange to me...

...not being an expert in thanatotic law, that anyone could have any expectation of privacy after their death. Hell, *I* won't care after I'm dead.

I can see cases where there may be existing contracts requiring the data to be maintained, or where a living third party has a legitimate interest, but otherwise?

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So who *can* read these records?

Since they are medical records and the hospital is arguing that they remain protected by the usual confidentiality, and since medical staff can't (I assume) just read someone's records unless they are treating them, and since *that* is now unlikely...

...under what circumstances will it ever be legal for *anyone* to read these records? (Visions of records being nailed into a wooden box and deposited in a vast warehouse, like the Ark of the Covenant...)

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Anonymous Coward

keeping files closed because

In the case of medical records and the general circumstances of this case, living third parties with a legitimate interest will, i think, trump FOI.

If this patient had died of something that her children could inherit then their privacy is at stake.

If it was something likely to be socially awkward for surviving relatives then same applies.

If we have a system that releases data if it is neither of the above then non-public data gets assumed to be gossip material.

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Re: So who *can* read these records?

If you read through the article you'll notice that they didn't so much say that no one could read the files, rather that the womans mother couldn't. Since consent was saught from the womans husband as her next of kin, it surely follows that he could have access to them if requested, but for what ever reason he chose not to approve giving permission for his mother-in-law to see them.

Surely an easier option would have been for them to define the ruling as saying that the rights of the patient transfer to the next of kin, which I would have thought would make the ruling more specific to the case, rather than catchall ruling which could effect other areas as well.

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Put all the historians in jail!

... along with archaeologists, astronomers, and anyone else who looks into the past, then. Biographers should be the tossed as well. David McCullough? What right does he have analyzing the private letters of our (US) presidents to their wives?

As to embarrassment for the survivors: we're all people. Be embarrassed (and make up) for the mistakes *you* have made yourself, and don't worry so much about what the relatives did.

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RW

From or About?

Unless I've misunderstood the article, it sounds like the law boffins are confusing information obtained from a third person with information obtained *about* a third person.

Yes, some of Karen Davies' medical records are undoubtedly derived from interviews with her: "Where does it hurt?" "Here." That's *from" a third party.

But I betcha a jelly donut <cue JFK's "Ich bin ein Berliner"> that the bulk consists of clinical observations made by medicos as employees of the hospital: "Patient's blood pressure is low."

That's *about* a third party.

But the most straightforward way to deal with this mess is to amend the law to declare the status of medical records after death. As someone suggested in another comment, consigning the relevant rights to the next of kin or (perhaps better) to the the estate makes the whole issue easy to resolve.

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Re: So who *can* read these records?

Ah, thanks Keith. I did indeed misread the article and got the impression that the next of kin had been locked out. Having been relieved of this misapprehension, the whole affair strikes me as rather unnoteworthy.

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Can we no longer carry our secrets to the grave?

In the past it was not uncommon for individuals (especially public figures) to have a proviso in their Wills stating that personal information shall not be released until 50, 75 or 100 years after their death. Presumably, this is to protect the privacy, reputation or mental well-being of the decedent's survivors.

Saying the equivalent of 'OK, she's dead... let's go through her stuff!' comes across as rather like vultures scavenging a carcass. (My apologies to families and friends of any departed loved ones who've had to face this issue.)

Here in the States, this topic is undergoing continuous debate, thanks to the infamous "Health Insurance Portability and Accountability Act" or HIPAA. To read an excellent discussion of the issues, Google "HIPAA Till Death Do Us Part?" from May 2004 HIPAAdvisory newsletter. Does a surviving child have the right to overturn the dead person's wishes? Does the survivor represent the deceased *or* their estate?

Stay tuned....

-Austin

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Pat

Next of Kin and Snooping Historians

I, for one, would rather not have my medical records a matter of public record just because I shove off. I would rather leave my family with making the decision to release info, as it may affect them in some way.

The presidential letters comment is a nice support for this as those letters are generally made public by the decedent or their relatives (by donation to the Smithsonian or the specific presidental library). Just look at the fight the family of James Joyce is having related to his letters. Thats a bit extreme, because the guy is trying to censor already public info, but he has a right for the estate to profit from Joyce's work.

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