Freedom Of Information - Disclosure Of Medical Records

The Information Tribunal has ruled that a deceased woman's medical records should not be disclosed. This ruling upholds the Information Commissioner's decision notice of 2006, and confirms that an NHS Trust was right to refuse to disclose the records in response to a request made under the Freedom of Information Act 2000 (FOIA) on the basis of the exemption from disclosure under s.41 FOIA.

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The case concerned Karen Davies, who died at Epsom General Hospital in 1988, aged 33. In 2003 it emerged that the hospital's treatment had not been satisfactory, that it had admitted liability for her death and had reached a settlement with her widower, Richard Davies, on behalf of himself and the two children of the marriage, under which a substantial compensation payment had been made. Karen Davies' mother, Pauline Buck, subsequently sought access to her daughter's medical records to establish what had happened. The hospital refused to release them without the permission of her next of kin, Richard Davies, who refused permission.

Pauline Buck took her case to the Information Commissioner, who said that the information should not be released; she then appealed to the Information Tribunal, which has supported the Commission's decision.

Freedom Of Information Act 2000

This case confirmed that the medical records in question were not subject to the Data Protection act 1988 (DPA), which only covers information about living individuals. It agreed that Karen Davies' medical records were exempt from disclosure under s.41 FOIA, which provides that public authorities may withhold information if its disclosure would constitute an actionable breach of confidence.

Section 41 provides that information is exempt information it was obtained by the public authority from any other person and the disclosure of the information to the public would constitute an actionable breach of confidence by that or any other person.

The parties did not dispute the fact that the medical records contain information obtained from a third person, namely Karen Davies. It was also agreed that the duty of confidence refers, on the facts of this case, to the equitable principle developed over many years, a point of law that must now be read in the context of the European Convention of Human Rights.

Duty Of Confidence

The Tribunal was required to make a decision about whether the duty of confidentiality could survive a...