Local authorities often receive Freedom of Information Act (FOI) requests for access to the social work records of the deceased. These usually come from family members, sometimes to assist them with a dispute or a legal claim. When making a decision about disclosure, Social Services staff are required to assess the privacy of the living as well as the dead.
Sometimes the exemption under section 41 of FOI (Breach of Confidence) can be used to refuse access to information about the deceased. This applies where a disclosure of confidential information, obtained from another party, would lead to an actionable Breach of Confidence. The leading Information Tribunal case (as it was called then) on this issue (Bluck v Information Commissioner and Epson and St. Helier University Hospitals NHS Trust EA/2006/0090) concerned the disclosure of medical records to the deceased’s mother without the consent of the deceased’s husband. The Trust’s decision to deny access, based on section 41, was upheld by the Commissioner and the Tribunal. Both ruled that the duty of confidentiality extends beyond death. If the information was disclosed there was, in theory at least, an actionable Breach of Confidence, which would allow the personal representative of the deceased (her husband) to sue the Trust.
This case was followed by the Information Commissioner in a Decision Notice involving Trafford Metropolitan Borough Council (FS50153179 27/11/2007.)
The complainant asked to see information about her deceased mother which was contained in her mother’s social services records. The Council refused to disclose the information claiming a number of exemptions.
The Commissioner ruled that in respect of the information about and which identified the deceased’s primary carer, the Council was correct to claim the section 40 exemption (personal data). The information included references to the carer’s personal circumstances, her health and financial arrangements. The sensitive nature of the information and the fact that the carer had objected to the release of similar information held by another public authority meant that the disclosure, without consent, would be unfair.
Most of the rest of the requested information was about the deceased. The Commissioner ruled that the section 41 exemption could be claimed. Cleary this information was obtained from another party (i.e. GPs, the primary carer, the deceased etc.) but was it confidential? The Council explained that individuals enter into social services care arrangements with the expectation that the information they provide (both directly and indirectly) will only be used in connection with the provision of that care and will not otherwise be disclosed to third parties without their consent (except in very limited circumstances). The Commissioner accepted that this expectation of confidence is the cornerstone of the Council’s relationships with its clients and is vital for successful service provision. The Commissioner also accepted that the threat of onward disclosure of such information could inhibit the relationship between it and its clients, in that concerns that private information may subsequently be open to public scrutiny may cause clients to be unwilling or to refuse to disclose important information.
On the other elements of the section 41 exemption, the Commissioner relied on the Tribunal decision in Bluck (see above) to rule that the duty of confidence survived the death of the deceased and disclosure of the information would be an actionable breach of confidence. The personal representative of the deceased (the carer) had a theoretical right to sue the council.
Sometimes information being requested about the deceased includes health records which may be accessible under the Access to Health Records Act 1990 . In such cases the exemption under section 21 of FOI may be claimed i.e. it is reasonably accessible by other means. Section 3 of the 1990 Act gives, amongst others, the personal representatives of the deceased, a right to access the health records of the deceased. Exceptions exist under section 4, e.g. where the patient had requested a note be made that they did not wish access to be given, and section 5.
Before applying the section 21 exemption, a public authority must carefully consider if the applicant indeed has a right of access under the 1990 Act as it only applies in limited circumstances. Firstly, If the requestor is not a personal representative of the deceased (or, to be technically correct, a person having a claim arising out of the death of the deceased) then they cannot access the information under the 1990 Act. Secondly the records being requested, must be health records within the meaning of the Act. A recent Tribunal decision sheds more light on these points.
In Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the requestor sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother including information about the care received by her mother at a care home she was staying at prior to her death. The requestor argued that she was the next of kin, proposed executor and trustee of one of the wills and had a valid claim against her mother’s estate under the intestacy rules.
Before the Tribunal, the requestor argued that the Commissioner had erred in concluding that the disputed information was exempt under section 41, as no actionable Breach of Confidence would arise from the disclosure of the information. The Tribunal gave short shrift to this argument and this is not surprising given previous cases discussed above. Strangely it concluded that the confidence was owed to the social workers! I would have thought that it was more owed to the deceased. After all, it was information about her care and the social workers were acting in a professional capacity.
The requestor also contended that the Commissioner should have found that the exemption under section 21 was engaged on the basis that “as next of kin and nearest relative” she would have been entitled to obtain the disputed information under the 1990 Act. The Tribunal disagreed. Whilst she was the nearest relative, she was not the personal representative and so had no rights under the 1990 Act. Furthermore the records being sought were not covered by the 1990 Act as they were not health records. Section 1 of the 1990 Act states that a “health record” is defined as a record which:
“consists of information relating to the physical or mental health of an individual who can be identified from that information, or from that and other information in the possession of the holder of the record; and has been made by or on behalf of a health professional in connection with the care of that individual” (my emphasis)
“Health professional” under the 1990 Act has the same meaning as in the Data Protection Act 1998 (DPA). The Tribunal found that social care professionals do not fall within the list of health professionals under Section 69 of the DPA.
The Trust confirmed that the information held had not been prepared by or on behalf of a healthcare professional. Therefore the Tribunal found that the requestor would not have been able to obtain the disputed information from the Trust under the 1990 Act and that the Commissioner was correct to conclude that the disputed information was not reasonably accessible by other means resulting in the fact that the section 21 exemptions would not be engaged.
This case shows the importance of local authorities and NHS organisations checking to see what is being requested (i.e. a health record or a social work record) and checking that the requestor has a right of access under the 1990 Act. If the answer to either question is in the negative then the request has to be considered in the light of section 41 (Breach of Confidence) i.e. the question has to be asked, would disclosure of the social work records lead to an actionable breach of confidence?
For more on access to information about the deceased read Ibrahim Hasan’s full article here
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Interesting article as we regulate Health AND Social Care so could have implications on how we advise people wanting to access social care records
Very interesting. I wonder if the person had the presence of mind (whilst capable) to request that a note be placed on their files/in their wills giving consent to certain named individuals whether this would assist. There has been some publicity about recording passwords of digital presence recently, but surely this would be a far more important thing to consider, particularly if there were to be any claims arising after death. Consideration would need to be given to the circumstances in which you might want relatives or representatives to have access to records (and indeed, which particular records), but it would be something I might consider.
Secondly, this is interesting because I work in a multi-agency partnership, where health and social care/local authority services are working together, and in some cases completing multi-disciplinary assessments. Would both DPA access rights and Access to Health Records Act apply? Or one or the other? I’m not sure I know the answer, but will be giving this some thought…