DOES CONFIDENTIALITY CONTINUE AFTER DEATH?
August 1998
"Do you need authorization for release of medical information if the patient has died, and if so, who authorizes this?" wonders GREG KARAGUESIAN, MD, of Haliburton, Ont.
I presume you are asking this question as an individual and not as a representative of an institution, in which case the Freedom of Information Act would apply. Although you don't say why the information is needed (for example -- research, study, statistics, court action, potential serious harm to a third party), I would suggest that you not release any information until you are ordered to do so by a court of law. The only explicit reference of which I am aware with regard to the continuance of patient privilege after death is in the World Health Organization's International Code of Medical Ethics which states that the physician must keep secret all he or she knows about the patient, even after the patient's death. The right to privacy is of fundamental importance, and the law is designed to protect us against the loss of dignity that may result from exposure of intimate details of our private lives. That protection doesn't simply evaporate with death. Only the patient has the power to release the physician from his duty of secrecy. Even under the Freedom of Information Act, the powers of a deceased individual may be exercised by his personal representative (executor or heir) only if the exercise of the power relates to the administration of the individual's estate. The other side of that coin is that the representative of the deceased can also act on his behalf where his rights have been breached; the release of privileged medical information might be considered such an instance, and therefore the heirs could sue. Information given to a physician in confidence is not always protected from disclosure in the courts. The Supreme Court of Canada held in 1992 that in the exercise of its discretionary power, the Court must balance the individual's claim to privacy against the interest of justice. In avoiding a miscarriage of justice, the public interest is more important than doctor-patient privilege. Consequently, under certain circumstances, a court of law can order medical records or physician testimony to be produced. To protect yourself from possible court action, wait for a court order before releasing confidential information, or get a legal opinion if you think there may be overriding public interest or danger to a third party. JF
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