Contact the list owner for assistance at [log in to unmask] For information about joining, leaving and suspending mail (eg during a holiday) see the list website at https://www.jiscmail.ac.uk/cgi-bin/webadmin?A0=archives-nraLiz
Similar to Pam’s issue. Assuming they’re transferred under PRA then they’re held as public records on behalf on TNA. They don’t belong to the health trust any more and they can not impose closure periods which fly in the face of FOI or are not aligned to DPA. To have a good working relationship with your health trust is something to treasure, especially if they have a records manager/dp officer in post who understands archival access beyond their own records management. I’ve heard varying views on the role of the trusts (or coroners, etc); whether they make access decisions, or whether it’s an archival decision, or joint, or if there should be a partnership agreement in place as to who routinely manages access. I think trusts are normally vaguely aware of public records status, FOI, etc and are happy for record offices to bear the burden of those enquiries. I don’t think they’re usually proactive in trying to impose restrictions on records that are no longer their own.
A note about direct descendants. They have no right to someone else’s medical records, any more than anyone else has. That said, we probably all help out families more than, for example journalists, and there may be genetic enquiries they have (requiring health advice!), or they do actually represent the deceased legally, or they can give ‘insider knowledge’ as to the family set-up by which the risks can be assessed. Here, I think, is the problem if access is managed strictly under FOI, whereby exemption under s41 might simply block any such family approach, and in fact if the data was disclosed under FOI then that medical information would be opened up to all and sundry. Straying into murky areas here, so probably a few comments coming!
Gary Moyle
Archivist| Heritage Services| Resources
Hertfordshire County Council
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From: Archivists, conservators and records managers. <[log in to unmask]> On Behalf Of Liz Bregazzi
Sent: 16 July 2020 17:43
To: [log in to unmask]
Subject: Re: Names and ethics
This matter is being dealt with by Ms E M Bregazzi
Please quote above subject reference when replying
During the First World War centenary, due to the fact that we wanted to use the asylum records as part of our WW1 project, but also because we were receiving a lot of enquiries (and still do), we were given permission by the relevant NHS Trust to reduce the period of restricted access to 85 years if the patients were adults. We are therefore able to apply that restriction, but we do ask the Trust for permission to release any details of patients within the 85 year period, having first received all relevant proofs from the enquirer that the patient is deceased and that they are a direct descendant. The Trust then checks the case notes with a clinician before giving permission.
Best wishes
Liz
Liz Bregazzi
County Archivist
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-----Original Message-----
From: Archivists, conservators and records managers. <[log in to unmask]> On Behalf Of Pamela Birch
Sent: 16 July 2020 17:32
To: [log in to unmask]
Subject: Re: Names and ethics
Bedford BC - OFFICIAL-Unsecure
Like many county record offices my service holds medical records relating to mental health, which have been transferred to us by whatever health trust was around at the time but which have subsequently been treated as still under the control of the successor health trust in terms of decisions about access.
In recent years (last updated in 2013) the health trust that was at that time the successor to the transferring trust took the line that no access to individual records could be given until 75 years after death of the patient under the expectation of continuing confidentiality. The only exception being for claims on the estate of the deceased person. We have always thought this was rather long (indeed it was an increase on the restriction imposed by a previous trust) so when provision of mental health services transferred to a different trust we tried contacting them to ask if they would consider a different restriction or whether they agreed with the 75 years and could point to where this had come from. In spite of repeated attempts we have never received any reply from the present trust.
It has been interesting that no other comments on this thread have said that they have the same restrictions on their mental health case files as us. Other counties must come under the same trust. Have we been wrong all these years in listening to the trust and allowing them to control access to these records?
Pamela Birch
County Archivist (usually)
-----Original Message-----
From: Archivists, conservators and records managers. <[log in to unmask]> On Behalf Of Sal Mager
Sent: 16 July 2020 16:28
Subject: FW: Names and ethics
I agree with the points being made and it is always reassuring to hear that we are working along the right lines and according to the correct principles when deciding on access. However, my understanding of this was thrown into doubt when the guidance provided by TNA for the recent Infected Blood Inquiry included the following statement:
"TNA normally advises that information about deceased patients should remain closed to public access for 100 years from last date, to maintain public confidence in medical confidentiality (FOIA s.41 exemption, actionable breach of confidence)."
I have been meaning to seek further clarification on what they actually meant by this. It appears to advocate a fixed closure period and one which may extend for a period of up to 100 years after death. Or perhaps I am misinterpreting it. If all it is saying is that if a medical record is less than 100 years old it requires further investigation before release of any of the information in it, then I would agree with that. But it specifically talks about "information about deceased patients" rather than records containing this information. We tag such records as "Subject to individual application" but for specific information generally work on restrictions only applying for the 100 year lifespan plus a buffer zone of an undefined period for very sensitive records depending on circumstances (to account for breach of confidence actionable by next of kin) but this certainly wouldn't extend as far as 100 years after death.
Interested to hear other people's take on this.
Sal
Sal Mager | Senior Archivist
Shropshire Archives
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