Disclosure of medical records to a personal representative — is a claim required?

Clarification from the High Court in the matter of Re AB [2020] EWHC 691 (Fam) that the personal representative of a deceased patient has a right of access to all of the deceased’s records, not just those relevant to any claim which may arise out of the patient’s death.

Background

The applicant, AB, was the brother and personal representative of the deceased. The deceased had made arrangements for the freezing and storage of his sperm at a fertility clinic some five or more years prior to his death. AB requested disclosure of all records relating to the arrangements for storage and use of the deceased’s sperm and/or any embryos created using his sperm from the respondent fertility clinic.

The request for disclosure was made under s3(1)(f) of the Access to Health Records Act (AHRA) 1990 which provides that, where a patient has died, an application for access to a health record may be made by “the patient’s personal representative and any person who may have a claim arising out of the patient’s death”.

The fertility clinic refused to disclose the deceased’s records under s5(4) of the AHRA 1990 which limits the right of access to health records where an application is made for the records of a deceased patient under s3(1)(f). Section 5(4) states: “… access shall not be given … to any part of the records 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”.

Decision

The court held that the limitation set out in s5(4) of AHRA 1990 only applied to parties with a claim arising out of the patient’s death and not to personal representatives. As the personal representative for his deceased brother’s estate, AB was entitled to receive copies of all the records he had sought from the fertility clinic, regardless of whether or not he had a claim arising out of the deceased’s death and/or if the records were relevant to any such claim.

Comment

The judgment provides helpful clarification regarding an issue upon which the guidance to date has been inconsistent. The decision removes any ambiguity, making it quite clear that when it comes to disclosure of a deceased patient’s health records:

• If the request is made by the personal representative of the deceased patient’s estate, there is no requirement to limit the disclosure to records that are relevant to any claim that may arise out of the patient’s death.
• If the request is made by someone other than the personal representative of the estate, that person must have a potential claim arising out of the patient’s death and the only records which should be disclosed are those which may be relevant to that claim.

It is important for NHS Trusts and other record holders to satisfy themselves as to the identity of the person requesting the records of a deceased patient. This may mean asking for further information from the requestor in cases where it is unclear. A personal representative should be able to provide a copy Grant of Probate or Letters of Administration to confirm his/her identity or, in the case of small estates where there is no Grant, a certified copy of the will showing who the personal representative is. Those making the request on the basis that they may have a claim arising out of the death should be able to confirm their identity and explain why they may have a claim.

Of course, there are still various other restrictions in place under the AHRA 1990 — just because a requestor is the personal representative of a deceased’s estate does not mean that he/she is necessarily entitled to all of the deceased’s records. Whilst a personal representative does not need to show that they may have a claim related to the patient’s death, the other restrictions set out in detail in s4(3) and s5 of the Act still apply. Section 5 states that access shall not be given to the following categories of information, including but not limited to:

• Information likely to cause serious harm to the physical/mental health of any individual;
• Information relating to an individual other than the patient;
• Information provided by the patient in the expectation that it would not be disclosed to the applicant;
• Information obtained as a result of any examination or investigation to which the patient consented in the expectation that the information would not be so disclosed.

If it is unclear whether or not a requester has personal representative status and/or may have a claim arising from the patient’s death, or whether or not the requested information falls into one of the excluded categories, then the record holder would be well advised to seek further legal advice.