Losing a loved one when you think it may be because they received poor medical care is incredibly stressful at a time when family and friends are grieving their loss. Often, people want to see a written record of the final days of their loved one and what happened to them, or they might want to go through years of records to ascertain whether there was a diagnosis that may have been missed, such as cancer.
The law relating to the disclosure of a deceased person’s medical records are diﬀerent to the general rules about release of medical records. It can be a confusing process to navigate because the General Data Protection Regulation (GDPR) which gives automatic access to your own records, does not apply when trying to access the records of someone who has died. Also, the Data Protection Act only applies to living individuals. That said, the obligation to respect a patient’s confidentiality extends beyond death.
Who can request medical records after a death?
Only certain people have the right to access the medical records of someone who has died and this is covered by the Access to Health Records Act 1990. This Act allows disclosure of medical records to:
- The Personal Representative of the person who has died. If the deceased person has a Will, the Personal Representative is known as the Executor of the Estate. If there is no Will, the Personal Representative is known as the Administrator.
- Anyone who may have a claim resulting from the person’s death. This means the representative of the deceased’s Estate (the Executor or the Administrator), or the ‘dependants’ of the deceased. There are strict criteria as to who is considered a dependant; very generally, this includes spouses, civil partners, children, parents and people living in the same household for at least 2 years before the death and immediately before the death as husband/wife/civil partner. Individuals falling into this category may be entitled to bring a civil claim arising from the circumstances of the deceased’s death by way of the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Act 1976.
You will need to provide evidence that you fall within one of these categories. This is fairly straightforward if you are the representative of the Estate as summarised in category (1) above. The Personal Representative can provide a copy of the Grant of Probate (if you are the Executor), or a copy of the Grant of Letters of Administration (if you are the Administrator). You do not need to provide any reason for requesting the records.
The situation becomes more complicated if you are not the Personal Representative, but believe you may have a claim resulting from the person’s death. For example, a person may die, leaving a spouse and children. However, the deceased may have chosen to name someone else as Executor (for example, his brother). In practical terms, the easiest way to obtain the records is always for the Personal Representative to request them. Problems can arise when the Personal Representative does not want to bring a claim for the Estate because they may not wish to be involved in a legal process such as a medical negligence claim and therefore refuse to request the records.
If someone other than the Personal Representative feels they are entitled to bring a claim they will need to show evidence of their relationship with the deceased. They will also need to say why they want the records. It is usually not enough to say you are worried about some aspect of the medical care and treatment or you want to write a letter of complaint and need the records to do so. You will need to set out specific concerns about the healthcare the deceased received that has led you to consider a claim for medical negligence. Such a claim must be brought within certain time limits. If you feel you do have a claim and access to records is proving difficult or taking a very long time, you should speak to our specialist medical negligence team.
What happens if you are not a Personal Representative and are not considering a claim?
If you do not fall under the categories of people entitled to request the records then access to a deceased person’s records is decided on a case-by-case basis. The person requesting the records would need to write to the hospital or GP demonstrating that:
- They have a valid reason for requesting the records;
- They have a legitimate relationship to the deceased;
- Access to the records is in the public interest.
A GP or hospital will take account of the wishes of the deceased person prior to death, the views of the surviving family, any distress the release of this information may cause to a living person and any loss of privacy that may aﬀect the reputation of the deceased.
Who should you write to?
To request GP records, you should write to the Practice Manager at the deceased’s GP surgery. When a person has died, the GP surgery often no longer store the records and the records are sent to Primary Care Support England. The Practice Manager will be able to tell you where they have been stored.
To request NHS hospital records, apply to the Access to Medical Records Team at the Hospital the deceased person attended. The Hospital will have information on their website that provides the precise address details, so it is worth checking because the records may be stored with another hospital within the same Trust. If you cannot ﬁnd this information it can be worth making a call to the Hospital’s Access to Medical Records Team to ensure you are writing to the correct department and address.
To request hospital records relating to private treatment, write to the private hospital involved, naming the doctor who provided your care and send the request to the Medical Records Manager/Access to Health Records Team.
What is meant by the term ‘health records’ and the type of records that can be disclosed?
The Access to Health Records Act 1990 defines a health record as being a record which “consists of information relating to the physical or mental health of an individual who can be identified from that information, or from that and other information in the possession of the holder of the record; and has been made by or on behalf of a health professional in connection with the care of that individual.”
The term ‘health professional’ has the same meaning as that applied to the term within the Data Protection Act 2018. This means health records made by the following individuals are covered by the Access to Health Records Act 1990 –
- Registered medical practitioner
- Registered nurse or midwife
- Registered dentist
- Registered dispensing optician or a registered optometrist
- Registered osteopath
- Registered chiropractor
- Person registered as a member of a profession to which the Health and Social Work Professions Order applies
- Registered pharmacist
- Child psychotherapist
- A scientist employed by a health service body as head of a department
Limits to Disclosure
Pursuant to the Access to Health Records Act 1990 access will not be given to any part of a health record which:
- In the opinion of the holder of the record, would disclose (a) information likely to cause serious harm to the physical or mental health of any individual, or (b) information relating to or provided by an individual, other than the patient or a healthcare professional, who could be identified from that information;
- Was created before the commencement of the Act on 1 November 1991, and
- Is the subject of a note, made at the patient’s request, that he/she did not wish access to be given on such an application. Such a request could relate to records prior to a specific date or records relating to a specific issue.
If part of a health record falls into category (1) the records are likely to be disclosed in a redacted format. If category (2) and (3) are applicable then records will be withheld.
If the records were updated during the 40 days before the date of your application, you should be given access within 21 days. If the records were updated more than 40 days before the date of your application, you should receive the records within 40 days.
Following the implementation of GDPR, the Access to Health Records Act 1990 was amended so that the records of a deceased person must be provided free of charge.
If you would like any further information or advice about the topic discussed in this blog, please contact Richard Lodge or our Medical Negligence and Personal Injury team.
ABOUT THE AUTHOR
Richard Lodge is a Partner in the Medical Negligence and Personal Injury practice and has been recognised within the field of clinical/medical negligence within the Chambers UK and Legal 500 directories. He is an individually ranked lawyer for clinical negligence within Chambers UK, A Client’s Guide to the UK Legal Profession.