Published 23 September 2008, doi:10.1136/bmj.a1794
Cite this as: BMJ 2008;337:a1794

News

Judge allows disclosure of workers’ medical records after death

¹ BMJ

A High Court judge in London ruled last week that doctors’ duty of confidentiality "arguably" survives a patient’s death but gave the go ahead "in the public interest" for the disclosure of medical records of dead nuclear plant workers to an independent inquiry.

The order by Mr Justice Foskett removed a barrier to the release of the records of dead workers to the public inquiry looking into the removal of hearts, lungs, and other organs from the bodies of employees in the nuclear industry for testing for plutonium after their deaths.

The inquiry, conducted by Michael Redfern QC, was set up by the government last year after it emerged that the consent of next of kin might not have been obtained for the body parts of former workers at Sellafield to be removed and analysed.

The inquiry covers workers at Sellafield who died between November 1962 and August 1991, and was extended to include former employees at other UK nuclear facilities, including Harwell, Dounreay, and the Atomic Weapons Establishment at Aldermaston.

Nicholas Lewis, occupational health physician and custodian of 30 000 records at Aldermaston, was concerned that disclosure might breach his duty of confidentiality to the dead patients and the health professionals whom they had consulted. He was willing to disclose the records to the inquiry but sought the court’s approval.

There is no binding legal authority for the proposition that the duty of confidentiality survives the patient’s death, the judge said. It was unnecessary for him to decide the matter definitively because the court has the power to order disclosure regardless of whether confidentiality survives death, if such disclosure is in the public interest.

Concerns had been expressed that if the right to confidentiality died with a patient "a doctor who treated a celebrity suffering from AIDS during his final illness" would be free to sell intimate details to a newspaper once the patient died, the judge said.

After reviewing the Hippocratic oath, guidance from the General Medical Council, and the views of medical authorities in other countries, he concluded that there were "strong pointers" towards the acceptance of the proposition that a doctor’s duty of confidentiality survives, "or is at least capable of surviving," a patient’s death.

However, he had "not the slightest doubt" that this was a case in which the public interest in disclosing the material outweighed the interest in maintaining confidentiality, provided proper safeguards were put in place.

"There is plainly a public interest . . . in determining what happened and why in connection with the very difficult and sensitive issues that arise from these matters," he added.

"Those families that know broadly what happened are entitled to fuller answers to the questions raised if they wish to have them, and there is a wider public interest in maintaining confidence in the NHS and the nuclear industry."

He said that confidence might be fortified "either by the results of the investigation of the inquiry or by the recommendations of the inquiry if past practices are found to have been wanting and improvements are suggested."

Cite this as: BMJ 2008;337:a1794

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