Medical files not covered by data protection law
CONFIDENTIALITY:Savita Halappanavar’s medical records are not covered by data protection rules as she is deceased, the office of the Data Protection Commissioner has clarified. The requirements of the legislation on confidentiality apply only to the living, according to Assistant Data Protection Commissioner Gary Davis.
The solicitor representing Ms Halappanavar’s husband Praveen has invoked data protection laws in his row with the HSE over the inquiry into her death and access to her medical records. Gerard O’Donnell has threatened to file a complaint to the commissioner if the HSE does not comply with his request to hand over her file and delete copies from its system.
He has also warned he may seek a High Court injunction to restrain any further access by the inquiry to the files.
However, the position of the HSE and Galway University Hospital, where Ms Halappanavar was treated, is that her medical notes are the property of the health service, not her family.
HSE director designate Tony O’Brien said yesterday this was the “firm and clear” legal advice he had received. Ms Halappanavar’s notes were owned by the health service and her next of kin’s consent was not required for their use by the inquiry set up to examine the circumstances of her death. He indicated the inquiry team had already examined the documents as part of its investigation. The original medical file is with the coroner, while copies are in the hospital and have been sent to the family.
According to barrister Simon Mills, the issue of whether a spouse could prevent an inquiry using his wife’s records has never been tested in the courts and is not governed by statute. In his opinion the courts would have to resolve such a dispute if it persists.
Mr Mills said the physical records of a patient belonged to the hospital, but the person had a right of confidentiality over the records. They could not, therefore, be disclosed to a third person without his or her consent or unless an exception applied, for example arising from a court order or legislative provision. “It is not clear in law whether the right to control this information passes to a next of kin when someone dies or is extinguished.”