1.       DPA does not apply in any way as only living people are covered.  So S29 is not relevant.

 

2.       Are the records she is seeking “Medical records”?  (That the request is addressed to you makes me think they might not be?)

If so, then Access to Health Records act 1990(?) is the relevant legislation.

 

(Note also that NHS policy on the release of medical records goes beyond the requirements of statute law as the NHS takes the view that the common law obligations of confidentiality extend beyond death.)

 

3.       If they are medical records, then the ”Personal Representative” (Executor or administrator) or a person who might need the record in pursuit of a claim for damages is entitled to have a copy.  (or, of course, following a Court order).  No one else.  And the NHS will/should refuse to release outside the required provisions of the Health Records Act.

 

4.       Records get third-partied for all except the names/information of “healthcare professionals”.  Consent etc. applies for other third parties.  (Just like any SAR.)   Note that there is a 1991 (I think without having access to my  references) bar so earlier records may not be disclosed.

 

5.       Where the deceased has expressed a wish that all or certain parts be not disclosed, that wish must be respected. (Again unless a Court orders otherwise).

 

(All the above reflects English law and, I think but don’t guarantee, Welsh as well.)

 

So if they are not “Medical records” (defined in the 1990 Act) then you will have to consider whether your organisation takes the same view as the NHS about confidentiality extending beyond death.  I’m told that case law is thin in this area but tends to support that view.

 

If not medical records, where you have an answer, I’d be tempted to tell them to get a court order.

 

Regards

 

Jim

==================================================== 
J.S.M.Whitaker

Mercia Information Ltd
======================================================================

 

-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Brenda Scourfield
Sent: Thursday, April 16, 2009 1:08 PM
To: [log in to unmask]
Subject: [data-protection] Disclosure of records re a deceased person

 

This is the scenario. Daughter disputes mothers will which was executed in 2003. She does not think she was of sufficient capacity to make the will.

Letter received from Solicitors asking to see care records for the deceased lady to ascertain what her circumstances and capacity were at the time and whether the care she received from Social Services would indicate she did not have the capacity to make the will.

 

I would guess that there are references to living individuals in the file (other than those performing their official caring duties).Also, possibly opinions on the lady’s condition as opposed to facts – but I am only guessing.

 

Could the solicitors claim exemption Section 29 – prevention and detection of

crime (which they haven’t)   ? What is our situation regarding disclosure of

data regarding a dead person to whom the DP Act does not apply, but duty of confidentiality might ?

 

I’d be grateful for any opinions.