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GPs still have a duty of confidentiality to a patient even if the patient is deceased, says Dr Nicholas Norwell

Bereavement can throw up a wide range of distressing emotions including anger and shock, and sometimes this can be directed towards you as the GP. Nearly a third of complaints received by MDU members involve the death of a patient.

Many complaints arise from a poor or unexpected outcome, particularly if this included a delay in diagnosis. In other cases the understandable shock and grief that relatives feel when a loved one dies can lead to them trying to apportion blame, particularly if the death is sudden or unexpected. In the MDU's experience an explanation of the facts and an apology if appropriate can resolve many complaints.

Police reports

One of the consistent messages from MDU medicolegal advisers during what can be an emotionally fraught time is that doctors still have a duty of confidentiality to patients even after death, and breaching this duty could have serious consequences.

Take the example of the call an MDU medicolegal adviser received from a distressed GP who said he had been visited by the police asking for a report about a recently deceased patient. He was unsure as to whether he could disclose the information and phoned the MDU to check.

He was advised that his duty of confidentiality extends beyond the grave.

Circumstances do vary of course. If the police officers were from the coroner's service, who often need to make inquiries on the coroner's behalf, it would be appropriate to co-operate with them.

Similarly, if the GP had been asked to provide a statement to the coroner, he would have been obliged to do so and would not have needed the authority of the patient's next of kin or personal representative.

But any other police officer making inquiries into the circumstances of a person's death would usually need the consent of the personal representative of the estate (or next of kin if there is no personal representative) before detailed information could be released, unless the situation justified a breach in confidentiality.

In normal circumstances information can be disclosed to the police to identify a dead person. In other circumstances the MDU advises GPs to get the authority of the personal representative of the deceased person's estate (called an executor where the patient had a will, and an administrator where there is no will). If you are uncertain, contact your medical defence organisation.

Where a child under 16 dies GPs have a responsibility, according to paragraph 23 of the GMC's booklet Good Medical Practice, to give the reasons for, and the circumstances of, the death. The reasons should be given to those with parental responsibility.

The GMC also says that if an adult patient has died you should provide this information to the patient's partner, close relative or a friend involved in the patient's care, unless you believe the patient would have objected to you doing so.

Respect patient's wishes

GPs are advised to take particular care when a will is disputed or where a life assurance company asks for information following a patient's death. It is important to remember that the wishes expressed by a patient during their lifetime should be respected after death.

Anyone who may have a claim arising from a patient's death can apply for access to the patient's medical records under the Access to Health Records Act 1990 which applies only to dead patients.

GPs should not allow access if the record includes a note made at the patient's request specifying that access should be barred.

Life assurance companies usually ask for reports about deceased patients, but they occasionally ask to see copy records. Unless the patient has consented to disclosure after death you should not give information without the authority of the personal representatives of the estate. If the patient made a request that access be denied then this must be respected. It's important to note that you should avoid any disclosures of information that would reveal the identity of a third party, or information that the patient would expect to remain confidential.

Deaths in surgeries

Regulations designed to tighten up the reporting of deaths in the wake of the Shipman murders require a GP to write a detailed report in the rare event of the death of a patient on practice premises1.

The report must include: the patient's full name; the patient's NHS number where known; the date, place and a brief description of the circumstances as known surrounding the death; the name of the doctor or other person treating the patient while on the practice premises, and the name, if known, of any other person present at the time of death.

The report must be delivered to the relevant primary care organisation no later than the end of first working day after the death occurred.

To repeat then, when one of your patient's dies it is understandable that their relatives will look to you for support. But it is important to remember that your duty of confidentiality still applies.

Nicholas Norwell is an MDU

medicolegal adviser

Case study

A GP had a request from an insurance company for details about one of her patients. The patient was a man in his 50s who had died of disseminated carcinoma. He appeared to have taken out the insurance policy shortly before his death, though the insurance company did not contact the GP for medical information at the time. The GP wondered whether she should comply with the request.

The MDU advised her that the patient may have given the company consent for this disclosure when he applied for the policy. She should ask for the signed consent, but if there was uncertainty whether consent was given by the patient, or if the GP believed the consent may not have been valid, then the medical report should only be disclosed with the full and informed authority of the executors of the patient's estate or his personal representative. The MDU adviser explained that the fact that the patient was deceased did not absolve the GP from her obligation of confidentiality with regards to the patient's medical records.

References

1 The National Health Service (Personal Medical Services) (Services List) and the (General Medical Services Supplementary List) and (General Medical Services) Amendment Regulations 2003, 52 (4)

www.legislation.hmso.gov.uk/si/si2003/20032644.htm

The cases mentioned are fictitious, but based on cases from the MDU's files. Doctors with specific concerns are advised to contact their medical defence organisation for advice.

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