The right to access medical records is provided by statute. For living patients, access is governed by the Data Protection Act 1998. Such individuals have an absolute right of access to their or their child’s medical records without giving reason. The only exception would be cases where there is an overriding public or individual interest in not disclosing the records (for example, that disclosure may in fact cause overwhelming harm to the individual concerned).
For relatives/ representatives of a Deceased patient, the right to access medical records arises from the Access to Health Records Act 1990 (AHRA). In these circumstances, the question of who has a right of access is more difficult and in recent years medical treatment providers/ health record keepers have become increasingly wary of releasing records too easily.
This follows the case of Bluck v Information Commissioner (2007) where the information tribunal found that the duty of confidence and confidentiality was capable of surviving death and that inappropriate disclosure of a Deceased patient’s medical records could give rise to legal action on behalf of the Deceased’s relatives.
This has led many medical treatment providers to be more cautious about releasing the records of deceased patients under the AHRA. Some Trusts are requesting copies of the Will or other formal documentation to prove that the person requesting access to records is the Personal Representative of the Deceased. This is even where the person requesting access is the Next of Kin. Whereas previously a request from the Next of Kin was almost always allowed without question, it seems some medical treatment providers do not consider that the Next of Kin have an automatic legal right to access records. Many are requesting several forms of identification for the relatives or personal representatives.
In what circumstances must release of records be allowed and what requirements can or should a medical treatment provider/ Health record keeper place upon a request for access to records of a Deceased patient?
To answer this, the AHRA needs to be revisited together with the Department of Health guidelines.
Section 3(1)(f) of the AHRA provides a list of people who are entitled to seek disclosure of the medical records of a Deceased patient. These people are:
- The Personal Representative of the Deceased (executor under a Will or Administrator where there is no Will) or
- A person who has a claim arising from the death (this is most likely to be a close relative but could potentially be someone else who may have been a financial Dependant of the Deceased).
The Department of Health advice on this is that each request must be considered on its own merit. Whilst a Personal Representative or Administrator have an absolute right of access without giving reasons for their request, anyone else must give an explanation for their request and why they consider themselves to have a right of access to the Deceased patient’s records.
Determination of whether the person requesting access has a claim arising from the death, be it personal injury or medical negligence (and thus an absolute statutory right to access), is up to the medical treatment provider/ health record keeper. In such circumstances, therefore, the medical treatment provider is entitled to ask why access is requested and insist upon some information/ evidence as to the nature of the claim to be raised. They must satisfy themselves that the person requesting records does, in fact, have the potential for a valid claim. This approach is endorsed by the current Department of Health guidelines. In some cases, the Health record keeper/ medical treatment provider continue to take a logical view where the position of the person requesting records is obvious and as such do not request evidence or information – for example, where the person requesting access is the spouse. However, this is not always the case.
Under the AHRA, being Next of Kin does not, of itself, confer a statutory legal right to access the medical records. In reality, it is more likely than not that the Next of Kin will either be the Executor of the Deceased’s estate under a Will or the person who would be appointed Administrator of the Estate where there is no Will. Equally, it is often the Next of Kin who will have a claim arising from the death. Nevertheless, where there is no Will, it is not normal for Next of Kin to be formally appointed as Administrator of the Estate unless the estate is valuable or complicated. It costs money to apply to be appointed as Administrator and it will clearly be an unreasonable and disproportionate cost to be appointed as Administrator purely to access medical records. It is hoped that in this circumstance the medical treatment provider/ health record keeper will take a sensible approach to requests from Next of Kin. Acknowledging, in cases where there is no Will, that the Next of Kin would be the appropriate person to be appointed Administrator, were this step to be taken.
What about a close relative or Next of Kin who is not the Executor or Administrator and where there is no claim envisaged? A close and grieving relative may simply wish to satisfy themselves about what happened to their loved one or assure themselves that their loved one received all necessary pain relief/ palliative care that they required. Do these relatives have a right to access the records? The answer is that they do not have a statutory right under the AHRA. However, the Department of Health guidance says that these requests should be considered carefully and with reference to the individual circumstances of each request. The medical record provider/ health record keeper should consider the likely benefit to a living individual or to the public interest of accessing the medical records. In this situation, however, the person requesting records will certainly have to give reasons for their request and demonstrate a legitimate interest and reason for accessing the records. If the Deceased patient had actively indicated that they did not want their records released or if it is felt that anything in the records could breach the Deceased person’s confidentiality, access may not be given at all or may only be given in part.
Interestingly, the guidelines state in this context “the obligation of confidentiality to the deceased is likely to be less than that owed to living patients and will diminish over time”.
It is increasingly common for medical treatment providers/ health record keepers to request proof of identity of our clients upon whose behalf we are seeking disclosure of records. Sometimes, they also ask for further confirmation of informed consent for disclosure, despite the client’s signature on the form of authority for release of records. This applies to both requests for records of a deceased patient and to requests for records of clients themselves under the Data Protection Act. Whilst this approach never used to be the case, it is consistent with the current Department of Health guidelines which states that medical treatment providers are under a duty to satisfy themselves as to the identity of the person seeking access to medical records.
Access to records of a deceased patient will not always be straightforward but for the most part requests are treated reasonably and where the request is reasonable, it is allowed. Whilst the red tape surrounding access to health records may increase the administrative burden on lawyers and clients, it is of course vital to ensure that sensitive and confidential patient information does not fall in to the wrong hands and is treated very carefully. It must at all times be ensured that patient confidentiality is protected and respected.