The Information Tribunal's recent decision in Mrs P Bluck v Information Commissioner and Epsom and St Helier University NHS Trust (EA/2006/0090) explored the relationship between freedom of information and doctor/patient confidentiality.

This case concerned an appeal by Mrs Bluck with regard to the refusal by the defendant NHS trust to release her deceased daughter's medical records. Her daughter had died in Epsom General Hospital at the age of 33. While limited information about her daughter's treatment had been released at the time, Mrs Bluck was not informed of any deficiencies in the standard of care. However, 5 years later Mrs Bluck discovered that the hospital has admitted liability for her daughter's death and had paid substantial compensation to the daughter's widower as part of a settlement.

Following several requests to Epsom and St Helier University Hospital Trust for the medical records, Mrs Bluck made a complaint to the Information Commissioner. The Trust claimed that, as the information sought was confidential, any disclosures must be made with the consent of the next of kin, which in this case was the deceased's husband who had refused such disclosure.

This case raised important questions as to the coverage of the exemption in section 41 (confidentiality) of the UK Freedom of Information Act. In particular, whether an obligation of confidence could survive the death of the person to whom it was owed.

The Information Commissioner, in his decision in this case, had concluded that the section 41 exemption did apply and that disclosure of the information would constitute a breach of confidence actionable by the deceased's estate. The Commissioner therefore refused to order the release of the information to Mrs Bluck.

Mrs Bluck then appealed this decision to the Information Tribunal. The Tribunal held that a duty of confidentiality applied to the information at issue in this case and that this duty continued after death. It further held that any breach of that duty would be actionable by the personal representatives of the deceased. In reaching this conclusion the Tribunal commented on the lack of definitive domestic case law on the point it was being asked to determine; instead relying heavily on ECHR jurisprudence in relation to articles 8 (private and family life) and 10 (freedom of expression).

Whilst the confidentiality exemption is not subject to the public interest test; the law of confidence recognises that the public interest in the disclosure of particular information can sometimes override a duty of confidentially. In her appeal, Mrs Bluck emphasised the public interest in disclosing the information and highlighted the importance of recognising the errors that had been made and ensuring that these are avoided in the future. However the Tribunal, while sympathetic to Mrs Bluck's situation, upheld the public interest in maintaining confidentiality. In particular it stressed the importance of preserving reliance in the medical profession in order to encourage patients to fully divulge information to their doctor.

The Tribunal's judgment is an interesting discussion of the law of confidence in relation to medical records and, in particular, what happens to confidentiality when the person to whom a duty of confidentiality is owed has died. However, what this case really highlights is a distinct lack of clarity in the law in relation to the protection of a deceased person's personal information. The protections afforded to personal information under the Data Protection Act 1998 apply to information about a living individual. This limitation clearly has implications in terms of cases such as this one.

In contrast to the position under the UK legislation, the Freedom of Information (Scotland) Act 2002 makes specific provision for the treatment of a deceased person's medical records under the Act. The Scottish Act contains an absolute exemption in section 38(1)(d) which provides that information that constitutes a deceased person's health record is exempt information. This exemption was specifically included in the Scottish Act in light of the fact that there were other legislative tools available to provide access to such information in appropriate circumstances; for example under the Access to Health Records Act 1990.

A copy of the full judgment of the Information Tribunal is available on its website – www.informationtribunal.gov.uk