Section 2 Confidentiality conundrums
The importance of individual case MDU advice
specific advice
A GP received a request for access to a deceased Having reviewed the letter received by the GP, the MDU
patient’s medical records from a university adviser explained that section 60 of the Health and Social
research department. Care Act 2001 had been repealed, and the equivalent
The department was participating in a national confidential
powers now were found in section 251 of the NHS Act
inquiry into suicide and homicide by people with mental
2006. The function previously performed by the Patient
illness. In addition to the written request for the medical
Information Advisory Group was now the remit of the
records, the researchers had supplied copies of the
National Information Governance Board, which has
research approval for the project and, in particular, a
established a new committee to administer section 251
letter from the Patient Information Advisory Group
applications.
granting permission to access deceased patients’ medical The purpose of the section, however, remains the same,
records without consent, under section 60 of the Health in that it‘permits the common law duty of confidentiality
and Social Care Act 2001. to be set-aside in specific circumstances for medical
The letter further stated that the GP member should not
purposes’. Furthermore, the GMC confidentiality
seek consent from relatives. Instead, specially trained
guidance points out that ‘where the purpose (of disclosure)
family liaison officers would contact the relatives.
is covered by a regulation made under section 60 of the
Health and Social Care Act 2001, disclosures may…be
The member wrote to the MDU and explained that she made without the patient’s consent.’
had sought previous MDU advice in relation to
confidentiality of medical records. Based on the previous
The MDU adviser agreed that, under normal circumstances,
advice, she considered disclosure in this case, without
a doctor’s obligation to respect confidentiality extends
appropriate authority, would be in breach of her ethical
beyond a patient’s death. However, in this particular
obligations.
situation, the MDU adviser felt that the member could
justify disclosure of the medical records, provided the
Her previous case related to a request from the Home National Information Governance Board’s Ethics and
Office Immigration Service for details about a patient. Confidentiality Committee had approved a section 251
The Immigration Service had stated that the information application to set aside patient consent. Indeed it might
was requested in accordance with section 29(3) of the be difficult for the member to make contact with the
Data Protection Act 1998 (DPA). relatives, given the delicate nature of the inquiry and the
suggestion that approaching the relatives would be best
At the time, the MDU adviser had explained to the
undertaken by specially trained personnel.
member that this particular section of the DPA simply
means that a disclosure made in connection with the The member subsequently disclosed the records and
detection or prevention of a crime would not be a thanked the MDU adviser for an explanation of the
breach of the Data Protection Act 1998. The specific complex interface between statutory requirements and
provision of the DPA permitted such disclosure, but ethical obligations.
crucially did not require it.
The MDU adviser had said that, while such a disclosure
would not breach the DPA, it was nonetheless not
required under the Act and it would not override the
member’s ethical duty as a doctor to respect the
confidentiality of patients. The MDU adviser highlighted
the General Medical Council (GMC) guidance,
Confidentiality: Protecting and Providing Information
(2004), which states that confidential information about
a patient should only be disclosed ‘where the benefits to
an individual or to society of the disclosure outweigh the “...the MDU adviser felt that the
public and the patient’s interest in keeping the
information confidential.’It had, therefore, been advised
member could justify disclosure of
that the member seek the patient’s fully informed
the medical records...”
consent prior to disclosure of any information to the
Home Office Immigration Service.
With the above case in mind, the member had considered
further her GMC obligations, in particular her duty to
keep information confidential after a patient has died.
The member felt that this request for information fitted
into a similar category to the previous case; she was
consequently not keen to disclose confidential
information to the university research unit without
consent from the deceased’s personal representative.
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