Is it a statement of fact that they are the legal representative? They have a piece of paper confirming such? If not then they are simply a relative and have no right to request under the Access to Health Records Act.
In terms of Access to Health Records Act those that can access are very few. You may take a view that there is no harm in releasing however, the only person that can sanction the release of records under these circumstances is a suitably qualified medical/clinical professional. So whilst you may think there is no harm in releasing, it's actually not your final decision.
Simon Howarth MSc. MBCS CITP
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 23 April 2014 12:30
To: [log in to unmask]
Subject: [data-protection] Would you disclose even though the law does not compel you to disclose?
Dear All,
Interesting case to consider.
An adult child of person who died in care comes to the organisation and asks for the care records and the health records of the deceased. They are the legal representative of the deceased. They believe there was a failure of care by one or more parties.
They cannot get the information under FOIA (personal data and confidentiality). They cannot get this under DPA. The person is deceased. They can only get half of the records under Access to Health records (Deceased).
They have no immediate legal access to social work files. So can you disclose? Would you disclose?
The applicant could go to court and seek a discovery motion to sue the organisations. Do you pre-empt this by disclosing to them, under a duty of confidence, the care files (with appropriate redactions, if required, of 3rd party data)?
You could treat this as a complaint, but that would not lead to a disclosure of files, it would only lead to an investigation and a judgement about the care or the subject of the complaint. I am not sure the Ombudsman can compel disclosure of records. (Does anyone know if they can?)
As an aside, if an MP asked for the records, would they be able to receive them? Is a deceased person still a constituent? Or is it that the court is the only venue for receiving access to the files?
Do you take the view that no disclosure unless compelled?
If you disclose, have you set a precedent? If you don't disclose do you wait for a court order? Or do you weigh up the likelihood of a court case and what that would entail and pre-empt that by disclosing.
I would be interested in your approach to such a case.
Thanks
Lawrence
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