Duty exists after death

Business Dilemmas

Dr Kathryn Leask

Dr Kathryn Leask discusses how the duty of confidentiality applies even after a patient’s death






Dilemma 1

Do I release dead patient’s notes?

QI am a private GP and, following the death of a patient, have been approached by the family requesting confidential information and records about the patient. 

They have not stated why they require this information, so I am wary to share this, as I understand I have a duty of confidentiality to the patient even after death. What do I need to know? 

AIt can be difficult to know what, when and to whom it is appropriate to disclose a deceased patient’s records. In paragraphs 134-138 of Confidentiality: good practice in handling patient information (2017), the GMC states that a practitioner’s duty of confidentiality continues after a patient has died. 

Furthermore, the Access to Health Records Act 1990 in England, Scotland and Wales and the Access to Health Records (Northern Ireland) Order 1993 in Northern Ireland both give a deceased patient’s personal representative, and anyone who may have a claim arising out of the patient’s death, a right to make an application for the patient’s medical records.

However, this right of access is not automatically guaranteed and may be limited to information relevant to the possible claim when the applicant is not the personal representative.

Access should be limited or refused if one of the following conditions applies:

 There is evidence the patient would not have expected the information to be disclosed to the applicant;

 The disclosure is likely to cause serious harm to anyone else;

 It would also disclose information about a third party – other than a health professional involved in the care – who does not consent;

 It would disclose information that is not relevant to any claim that may arise out of the patient’s death – if the applicant is not the personal representative;

 It predates 1 November 1991 in England, Scotland and Wales, unless earlier records are required to understand subsequent entries.

Additionally, access must be refused to records containing a note, made at the patient’s request, stating they did not wish access to be given on an application under this legislation.

Complex process

Unfortunately, this can be a complex and confusing process. It can sometimes be very difficult to discern what is being requested and why. 

The GMC requirements and the national legislation can be distilled into a series of steps to follow when you receive a request for disclosure of the medical records. 

These following steps are applicable when a third party asks for disclosure of medical records, and the practice is unsure about the nature of the request and/or identity of the third party.

1. You should make it clear to the applicant/complainant that while you have no wish to be obstructive, you must consider your duty of confidentiality to the patient, which is ongoing after death.

2. Ask the applicant/complainant to specify what information they are requesting, why they require the medical records and for what purpose these will be used. Also ask them to confirm whether or not they are the personal representative of the deceased patient’s estate, preferably in writing. 

It should help you understand why the medical records are being sought, which ones may be relevant to the request and whether they can be disclosed.

3. You may want to seek the personal representative’s views on the application for disclosure; for example, in a will dispute case. If this is the case, you should ask the applicant/complainant if they are the personal representative of the patient’s estate – and if not, for the name and contact details of the personal representative, if known to them.

4. If the personal representative is known and the applicant/complainant is happy for them to be contacted, move to step 7.

5. If the applicant/complainant does not know the identity of the personal representative, proceed to step 8.

6. If the applicant/complainant objects to you making the personal representative aware of their application/complaint, you should ask for their reasons and explain that it may hinder your ability to respond to the request. Once the reasons are provided, move to step 8.

7. You should write to the personal representative, making them aware of the application/complaint and seeking their views on the requested disclosure. 

If the personal representative opposes disclosure, ask them to explain their reasons so that you can take these into account when making your decision as to whether disclosure is appropriate.

8. Once you have all the necessary information from the applicant/complainant and the personal representative, where appropriate, you should review it alongside the relevant parts of the patient’s records. 

You should also form a view on whether the requested disclosure is:

a) Required by the legislation or b) Reasonable under all the circumstances.

Dr Kathryn Leask is a medico-legal adviser at the Medical Defence Union

Fears about an old doctor

Dr Kathryn Leask

Much soul-searching can take place in knowing what to do if you have concerns about a colleague. Dr Kathryn Leask gives her view





Dilemma 2

Should I report my colleague ?

QOver the last few months, I have become concerned about the standard of care that a senior colleague has provided to patients and that he is using management plans now considered outdated. 

I am a relatively newly qualified consultant gastroenterologist who recently started working at a private clinic. Can you give me any advice on what should I do? 

AThe safety of patients must come first at all times and this overrides any personal or professional loyalties if your colleague’s behaviour puts patients at risk as well as his own career and reputation. 

In the first instance, it may be appropriate to talk to your colleague about your concerns and encourage him to seek help. 

Be sympathetic but make it clear that you are concerned that patients are being put at risk and be clear that you will need to take action if the issue is not addressed.

If you do not feel it is appropriate to discuss this directly with your colleague, you can report your concerns in line with the clinic’s procedure for raising issues. This would generally involve raising the matter with a senior manager in the department. 

Keep a record

If you raise this verbally, keep a note of any discussions you have had, with whom and when. It is also advisable to follow up in writing and keep a record of correspondence so you can document the steps you have taken to raise your concern if necessary. 

These actions are in line with the GMC’s guidance Raising and acting on concerns about patient safety (2012), which states that all doctors have a duty to act when they believe that patient safety is at risk or that patient care or dignity is being compromised. This duty overrides any personal or professional loyalties.

This guidance also explains that if the doctor is unable to put the matter right, then they should raise the concern with an appropriate person in their employing organisation. 

The doctor does not need to wait for proof and can justify raising a concern if it is done honestly, on the basis of reasonable belief and via the appropriate channels, even if the doctor is mistaken.

While it may be difficult to raise concerns about a colleague’s health because of worries it could cause problems for them or make interactions uncomfortable, patient safety is paramount and if you feel a colleague’s health may put patient safety at risk, you should take steps to protect the patients. 

Be reassured that reporting health concerns often means that a doctor is enabled to confront the issue and to access the help and support they need to practise safely in the future.

Dr Kathryn Leask is a medico-legal adviser at the Medical Defence Union