Posthumous Medical Confidentiality

The Public Interest Conundrum

in European Journal of Comparative Law and Governance
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This paper reflects on the balancing of public interests that needs to be undertaken under English law when dealing with posthumous medical confidentiality. Until 2007, doctors were bound only by professional codes of ethics to maintain confidentiality after their patients’ death. In 2008, the High Court stated that it is arguable that confidentiality applies in the post-mortem context. This, it claimed, is in the public interest. The court then followed the ecthr in using the same basis – public interest – to accept that there may be exceptions to this duty. This paper considers different situations where multiple interests come together for and against the posthumous disclosure of medical information. This examination suggests that there is considerable uncertainty caused by using one notion of public interest to justify confidentiality, and another to make the case for disclosure. It calls for the legislator to intervene to help resolve the conundrum.

Posthumous Medical Confidentiality

The Public Interest Conundrum

in European Journal of Comparative Law and Governance

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References

3

C. Jones‘The utilitarian argument for medical confidentiality: a pilot study of patients’ views’Journal of Medical Ethics 29 (2003) 348.

7

H.E. Emson‘Confidentiality: a modified value’Journal of Medical Ethics 14 (1988) 87.

14

J. HerringMedical Law and Ethics (Oxford: Oxford University Press2012) 224.

16

J. Berg‘Grave secrets: legal and ethical analysis of postmortem confidentiality’Connecticut Law Review (2001) 81 at 87.

17

C. Ploem‘Medical confidentiality after a patient’s death, with particular reference to The Netherlands’ Medicine and Law 20 (2001) 215.

24

J.M. Balkin‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’New York University Law Review 79(1) (2004).

39

M.R. Wicclair‘Ethics and research with deceased patients’Cambridge Quarterly of Healthcare Ethics 17 (2008) 87 at 89–90.

46

R.D. Strous‘To protect or to publish: confidentiality and the fate of the mentally ill victims of Nazi euthanasia’Journal of Medical Ethics 35 (2009) 361 at 363–364.

48

A.H. Maixner and K. Morin‘Confidentiality of health information postmortem’Archives of Pathology and Laboratory Medicine 125 (2001) 1189 at 1190.

54

Ibid.; M.H. Kottow‘Medical confidentiality: an intransigent absolute obligation’Journal of Medical Ethics 12 (1986) 117 at 119.

55

D.S. James and S. Leadbetter‘Confidentiality, death and the doctor’Journal of Clinical Pathology 49 (1996) 1 at 2.

57

M. Donnelly and M. McDonagh‘Keeping the secrets of the dead? An evaluation of the statutory framework for access to information about deceased persons’ Legal Studies 31(1) (2010) 42 at 68.

58

R. Dworkin‘Hard Cases’ Harvard Law Review 88(6) (1975) 1057.

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