The records of a deceased individual are covered by entirely separate legislation – the Access to Health Records Act 1990, but is often the subject of a number of queries which Bevan Brittan receives from a range of health organisations.
There are occasions when the sharing of information is necessary and entirely appropriate – for example, at the request of a Coroner for an Inquest, or pursuant to a Court Order. Nonetheless, medical records of a deceased individual should remain confidential, and are not disclosable in all circumstances. However, difficulties often arise when an individual is requesting a copy of the Deceased’s records to settle the Estate, or because they are considering a potential claim. It is these latter two issues, the subject of many queries we receive, which is considered within this article.
Under common law, the duty of confidentiality owed to any
individual continues following death
As stated, access to health records or health information of a deceased person is governed by the Access to Health Records Act 1990 (“the Act”). As a result of this legislation, where a patient has died, ‘the patient’s Personal Representative and any person who may have a claim arising out of the patient’s death’ (Section 3(1)(f)) may seek access to the Deceased’s medical records.
However, an Applicant does not automatically have unlimited access to the health records of the deceased person. If the Deceased had indicated that they did not wish information to be disclosed, or the medical records contained information that the Deceased expected to remain confidential, then it must remain so. In addition, the record holder has the right to deny or restrict access if they believe that disclosure would cause (a) serious harm to the physical or mental health of any other person, or (b) it would identify a third person who has not provided consent to the disclosure. (The latter (b) does not apply to a health professional who has been involved in the care of the patient).
It is also of note at Section 5(4) of the Act that “Where an application is made for disclosure … access shall not be given … to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient’s death”.
Further, it should also be noted that this Act is not
retrospective in its application. Therefore no organisation is
under an obligation to disclose medical records created before 13
July 1990 unless it is to make intelligible any records created
after that date.
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The largest volume of requests for information are either from a Personal Representative who requires that information to help settle affairs relating to the Deceased’s Estate, or more usually because an individual is pursuing or considering whether to pursue a claim in some way arising from the patient’s death. This may not specifically be a claim against the relevant health organisation, but nonetheless, the health organisation will be contacted to ask to provide a copy of the Deceased’s medical records.
Whilst access to medical records is permitted to the appointed Personal Representative or anyone who has a claim arising from the patient’s death, access to any part of the record which in the opinion of the record holder would disclose information which is not strictly relevant (for example to the request made by the Personal Representative or any claim which may arise out the patient’s death), should not be disclosed.
Often, it is not clear from the request for information (a) who the Applicant is, (b) what their relationship is to the Deceased (c) on what basis that individual believes they are entitled to medical records, (d) there is no proof of their status, and (e) in relation to a claim, it may not be clear what that claim is, legal or otherwise, or whether the medical records of the Deceased would be relevant.
(A) Request by Personal Representative
Whilst an individual may state that they are acting in the
capacity of a Personal Representative, it is still necessary to
obtain evidence of their status. It is therefore appropriate to
request a copy of the will, grant of probate or letters of
administration in order to confirm that the individual is a
Personal Representative or legally appointed individual as
Ascertain what information the Personal Representative is seeking and why. This in particular is because it may be that the Personal Representative is trying to deal with one specific aspect of the Estate, and would only need disclosure of certain records in relation to the particular matter rather than the entirety of the records held.
Where records are to be disclosed, it is recommended that these are reviewed by the appropriate clinician prior to disclosure to ensure that no information relating to a third party, or information which may cause serious harm to an individual is inadvertently disclosed.
Where information is to be disclosed, the Applicant can either be invited to come and see the records, or should receive a copy of those records.
(B) Request by an Individual pursuant to a Claim/Potential Claim
If there is a lack of clear information in the way that I
have outlined above, I would recommend writing to the Applicant
stating that whilst as an organisation you would not wish to stand
in the way of the legal process by unnecessarily preventing access
to relevant medical records; in order to take a balanced view as to
whether or not you are able to disclose the Deceased's records, it
will be necessary to clarify
(i) the nature of any intended claim,
(ii) in what way it is believed that the disclosure of medical records would assist in that claim.
The Trust can also emphasise the it is not at liberty to disclose records if the above facts cannot be clearly established, and in any event disclosure will be limited to the particular circumstances and records (in relation to any claim) as outlined by the Applicant.
Again, where information is to be disclosed, it should be reviewed by an appropriate clinician and the Applicant invited to attend to view the records, or receive a copy (see points 3 and 4 section A, above).
We see that the legal framework does allow disclosure of information concerning a Deceased patient in certain circumstances. However, this is in a controlled way using the Access to Health Records Act 1990. It is therefore important to follow the necessary steps for disclosure, and to be clear about to whom you are disclosing information, and on what basis. This should be clearly noted and documented.