Posthumous Medical Confidentiality; The Public Interest Conundrum

Abstract

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.