I’ve been involved in something similar and it was quoted that medical records would not be released (as I’m sure you’re aware there are only a limited number of people who can access such data) and any material not a medical record whilst we would treat in the same way we would apply FOI Sec. 40.
In terms of the consent form for the equipment, would it help to ask yourself that in using the equipment would a patient reasonably expect the discussion/recording to have confidence attached to it, and on that basis would a duty of confidence apply to the record, regardless of the medical records status? If so, then I believe you are well placed to refuse.
That’s not to say that you shouldn’t consider why the request is being made (purpose blindness not withstanding) and whether or not it is reasonable to consider release for specific reasons, but I believe that you have the mechanisms to refuse release, if you see fit.
Simon.
From: This list is for those interested in Data Protection issues <[log in to unmask]> On Behalf Of REZAZADEH, Adam (SUSSEX COMMUNITY NHS FOUNDATION TRUST)
Sent: 05 July 2018 12:57
To: [log in to unmask]
Subject: [data-protection] Access to Records Query - deceased communication aid
Hi all,
A scenario I would be grateful for your advice on:
We are in the process of reviewing a request from a deceased patient’s relative. The relative is requesting the saved messages and chat history from a communication aid (i.e a computer to help build sentences and talk for the patient etc).
There are 2 types of information recorded on the system which we operate and has been returned to us: the chat history which is approx. 74 pages of everything the patient has said (time period is not known) and also the Grid Messages - these can be individual words, sentences or phrases which are frequently used to build speech and also messages which the patient has saved to either reuse or for other unknown reasons (posterity?).
From the application, the relative is requesting his Grid messages and also his whole speech history for the for sentimental reasons and also due to family matters.
As the patient is deceased the data protection act/GDPR does not apply, as it is not actually a medical record the Access to Medical Records Act does not apply.
Therefore it is more likely to be a Freedom of Information request for information that we hold, which means we need to consider our duty of confidentiality although there are no clear legal obligations of confidentiality that apply to the deceased but the GMC agree there is an ethical obligation requiring that confidentiality obligations continue to apply after death.
With hindsight we now realise we did not provide a specific consent form or privacy notice for this equipment, which we will obviously resolve, but in the meantime does anybody have any experience or useful suggestions?
Thanks in advance.
Kind regards,
Adam Rezazadeh
Information Governance Manager
Information Governance Team | Performance & Improvement Directorate | Sussex Community NHS Foundation Trust
Direct: 01273 696011 x 1799 | IG Team: 01273 666473 (Internal VoIP only: 809209)
Brighton General Hospital | Elm Grove | Brighton | BN2 3EW
Excellent care at the heart of the community
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