by Ibrahim Hasan, IBA Solicitors, Dewsbury


Disclosure of deceased persons' information

The dead may not be able to sue, but do they have a right to privacy when it comes to disclosing information about them? This question has exercised the minds of public sector lawyers and Freedom of Information Act (FoIA) professionals alike ever since the Act came into force.



The Access to Health Records Act 1990 gives the personal representatives of the deceased, or a person who has a claim arising from the death of the deceased, a right to access the deceased person's health records. If the applicant does not come within the above categories, then their request has to be dealt with under the FoIA, which does not provide a specific exemption for such records. However, this does not mean that the information will have to be disclosed. Medical information is rightly considered to be highly confidential and in need of protection from prying eyes.



Section 41 of the FoIA states:

'Information is exempt information if:

(a) It was obtained by the public authority from any other person (including another public authority); and

(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.'



The Information Commissioner advises that to claim this exemption, public authorities must decide that the disclosure would be a breach of confidence first. Then, they must establish that such a breach will be actionable by someone in court.



Ever since Coco v AN Clark (Engineers) Limited [1968] FSR 415, it has been accepted that a claim for breach of confidence requires three conditions to be fulfilled: the information has to have the necessary quality of confidence about it; it must have been imparted in circumstances imposing an obligation of confidence; and there must be an unauthorised use of that information to the detriment of the party communicating it.



While the section 41 exemption is absolute, the tort of breach of confidence contains an inherent public interest defence.



Medical information as well as other sensitive records of the deceased (such as social work records) will easily satisfy the first limb of the breach of confidence test. But other information will require careful consideration.



In a decision involving the National Archives (11 December 2006), the complainant requested information relating to the 1911 census schedule. The commissioner decided the National Archives wrongly withheld the information under section 41 since it did not have the 'necessary quality of confidence' about it. It comprised individuals' names, relationship to the head of the family, age, occupation, marital status, birthplace and nationality. This was not the sensitive information also captured in the census such as health or infirmity. Had it been the latter, it would have warranted protection even though the subjects may be dead.



The leading Information Tribunal decision on medical records of the deceased is Bluck v Information Commissioner and Epson and St Helier University Hospitals NHS Trust (17 September 2007). Mrs Bluck sought access to her daughter's medical records to establish what happened when she died. The hospital refused to release them without the permission of her daughter's husband.



The commissioner's decision to allow the use of section 41 to withhold the information was upheld by the tribunal. It decided that all the requisite elements of breach of confidence were present. Disclosure was being sought of sensitive medical information gathered via the confidential relationship between doctor and patient. It would be contrary to the deceased's reasonable expectation of maintaining confidentiality in respect of her private information. The tribunal further ruled that the public interest in maintaining confidentiality in the medical records of the deceased outweighs the counterveiling public interest in disclosure.



The tribunal also agreed that the duty of confidence between doctor and patient must survive the latter's death even though there was no direct caselaw on this point: 'We agree with the [hospital] trust and the Information Commissioner that, as a matter of principle, the basis of the duty in respect of private information lies in conscience.'



The tribunal drew upon European caselaw on article 8 (the right to private and family life) of the European Convention on Human Rights to rule that the deceased's husband could take action for this potential breach of confidence. In Plon v France [2004] ECHR 200, the widow and children of the late President Mitterrand had brought an action in the French courts to prevent the distribution of a book written by the deceased's doctor, describing his health while he was in office.



Although the court acknowledged that the lapse of time since the death of a major public figure might lead to the public interest ultimately overriding the late president's right to medical confidence, it nevertheless acknowledged the survival of that right and that it was appropriate for action to protect it to be brought on behalf of the deceased after his death.



Article 8 has also been relied upon by the domestic courts when considering disclosure of social services records. In R (on the application of Addinell) v Sheffield City Council (QBD, unreported, 27 October 2000), Mr Justice Sullivan upheld the decision of Sheffield City Council to refuse the father of a dead teenager access to his son's social service records on the grounds that the boy had a right to privacy. If article 8 allows the disclosure of information about a deceased minor to be refused to a close relative, then arguably close relatives should have standing to enforce an obligation of confidentiality owed to the deceased during his lifetime, particularly if the disclosure is threatened by a public authority.



Requests for access to deceased persons' records require consideration of a number of different areas of law including human rights, the law of confidence and the Access to Health Records Act 1990. Recent decisions by the commissioner and tribunal have clarified the issues to a certain extent. No doubt more is yet to come.



Ibrahim Hasan is also a director of Act Now Training