Last reviewed 11 April 2014

Chris Payne provides guidance on the issues relating to the Freedom of Information Act.

Prompt 21A of the Care Quality Commission (CQC)’s Essential Standards of Quality and Safety refers to the Freedom of Information Act 2000, which comes into play where requests are made to have access to a person’s care records after his or her death.

The Data Protection Act 1998 does not apply to someone who has died, but it has been ruled that the medical and care records of a dead person should be subject to the same rules of confidentiality as if he or she were alive. It is still permissible for an interested party to have access to the dead person’s records if they have a good reason. The person making the request may then have access to the sought information about the dead person, providing that it does not include information about or from people whose rights of confidentiality are protected under the Act.

Local authorities and NHS Trusts have had to develop complex policies and procedures to make sure, on the one hand, that people who are entitled to have access to a dead person’s records can do so and, on the other, that the rights of people who might have provided that information in confidence are also protected.

From time to time, a care service will receive a request from relatives, or a solicitor acting on their behalf, to gain access to a dead person’s care records. Such requests will usually be made in the context of concerns or dissatisfaction with the care that was provided and sometimes in relation to the dead person’s estate. Solicitors’ letters sometimes appear very threatening so it is important for care service managers to be certain of the grounds on which they are responding. If necessary, they should seek legal advice themselves.

Managers should be aware that, although there might be some overlap, eg in relation to the administration of medication, care records are not the same as medical records. For example, under the Access to Health Records Act 1990, a personal representative (which does not mean just any relative or interested party) has a right to access a dead person’s health records in connection with his or her role.

It has been made clear that the entitlements under this Act do not apply to social work or social care records. This suggests that the care service should not disclose the medical information it possesses, which should be requested through a different route. The information should then be reviewed to make sure that it does not refer to content provided by people who are covered by the Data Protection Act without their consent. If it does and consent has not been obtained, the material must be struck out or redacted, usually by using impermeable black ink.

Ease of access

Ease of access that comes from well-organised documentation is another aspect that must be considered. If care records are badly organised it will be difficult for people to have access to the information that they need at the time, and they could miss or misunderstand important items as a result. This will then put the service user at risk. Failure to correctly identify a person’s medication needs because of poor record keeping is a clear example, and an assessment of non-compliance will result.

There are many ways of organising records efficiently for ease of access, which in manual documents will often involve the use of separators, tags and colour-coding, with prominence given to currently needed information and recording sections. Electronic methods should use similar tools to enable ease of access. This assumes that a person is authorised to have access, which will always be on a “need to know” basis.