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.