Case study - Disclosure after a patient's death

By Dr Saheli Chaudhury, GP partner

Fred had been my patient for a few years but died in November 2011. Fiona, who is the eldest daughter of Fred, is also my patient and was her father’s main carer. Fred was due to take a holiday over Christmas in 2011, so Fiona wanted to cancel the holiday and make a claim on the holiday insurance policy that Fred took out in December 2009.

Fiona had already forwarded the relevant correspondence to the travel insurance company with regards to the claim, but received a letter from them asking for her father’s medical records for the two years prior to taking out the insurance policy. The company was refusing to pay until furnished with that information.

"Confidentiality is one of the cornerstones of trust that enables patients to be open with doctors about their symptoms and problems"

Fiona contacted the surgery requesting her father’s medical records. She was concerned that if the insurers did not pay she would be £2,500 out of pocket. I knew she was a very caring daughter and had looked after her father well in his last months. He had fairly good health up to August 2010 but after several TIAs, developed vascular dementia.

Whilst mindful of the doctor–patient relationship between Fiona and me, I was unsure of the best way forward in this situation. I bought time and suggested I look into matters to see how best I could help. 

Actions

There is guidance and legislation regarding disclosures after death; the GMC’s guidance on confidentiality and the Access to Health Records Act 1990. As a general rule, you should seek a patient’s express consent before disclosing identifiable information for purposes other than the provision of their care or local clinical audit, such as financial audit and insurance or benefits claims; however, this was not practicable in this case as Fred had passed away. Fred had not signed a consent form with his insurance policy, either.

My duty of confidentiality to Fred continues after he has died. The permission of a surviving relative or next of kin is not required and does not authorise disclosure of confidential information, although the views of those who were close to the patient may help you decide if disclosure is appropriate. I chose to discuss this scenario with my GP partners at the practice and rang MPS for advice.

"Ultimately, a doctor’s primary concern is patient safety and ensuring that the patient is cared for"

After discussion and in light of the guidance and legislation, I concluded that I could reasonably justify providing the relevant information on the following grounds:

• It could be reasonably stated that Fiona’s request pertained to a claim arising out of the death (hence she would have a right to make an application for disclosure of the part of the records that was relevant to her request under the provisions of the Access To Health Records Act [1990]).
• I had no reason to believe that Fred would have objected to the disclosure (GMC, Confidentiality, paragraph 71[g]).
• The disclosure of information was likely to benefit Fiona (GMC, Confidentiality, paragraph 70 [a]).

All names and events in this case scenario are entirely fictional and are solely to demonstrate the ethical dilemmas often faced in day-to-day general practice.

Conclusion

Confidentiality is one of the cornerstones of trust that enables patients to be open with doctors about their symptoms and problems, and it is generally implied that when a patient consults a doctor, the information about the patient is kept confidential. There are, however, situations when you may have to disclose information about a patient when it is in their best interests, or the interests of the public, with or without their consent.

Ultimately, a doctor’s primary concern is patient safety and ensuring that the patient is cared for. So long as your reasons for disclosing patient information are justified, you will be able to defend your actions.

Useful links

How can MPS help your practice?

• MPS factsheet, Confidentiality – Disclosures relating to patients unable to consent
• GMC, 0-18 years guidance: Children and young people who lack capacity to consent
• GMC, Consent guidance, Part 3: Capacity issues, When a patient lacks capacity
• GMC, Confidentiality.