Medical records can be crucial to disputed estate matters. For example, will challenges often involve a dispute about whether the deceased held testamentary capacity to make a will. Medical records can be critical as evidence to support or defend the claim. However, after the deceased has died only certain individuals have the right to obtain copies.
Section 3(1)(f) of the Access to Health Records Act 1990 (“the 1990 Act”) allows the deceased’s personal representatives and any person who may have a claim arising out of their death to apply for access to the deceased’s health records. However, authorities can restrict the disclosure of certain records if they consider that it is not relevant to claims arising out of the deceased’s death under section 5(4) of the 1990 Act.
The case of Re AB [2020] demonstrates how far the rights of personal representatives extend, in an unusual context. Five or so years prior to the deceased’s death, he made arrangements for a fertility clinic to freeze and store his sperm. AB, the deceased’s personal representative, requested copies of all records relating to the storage and use of the sperm and/or any embryos created using the sperm. It is unclear why the records were required.
The fertility clinic declined to provide copies of the requested information on the basis of maintaining confidentiality unless there was a clear duty of disclosure. The issue was whether the limitation under section 5(4) of the 1990 Act could be relied upon by the clinic to prevent disclosure of information irrelevant to a claim arising out of the patient’s death, where the request came from a personal representative. AB applied to the High Court for consideration of the issue and an order requiring the clinic to disclose the relevant records.
Sir Andrew McFarlane P in the High Court held it was lawful for personal representatives to apply for medical records under the 1990 Act and that such right was not limited to circumstances where there is a claim arising out of the deceased’s death. He found that a deceased’s personal representative and a person who may have a claim arising out of the deceased’s death to request health records under section 3(1)(f) are two distinct categories of individuals. The right of a personal representative is not confined to where there is a claim arising out of the deceased’s death. Section 5(4) which curtails the disclosure of health records only applies to those seeking to make a claim arising out of the deceased’s death.
It was concluded that the personal representative’s application for disclosure of records was valid. Therefore, the clinic holding the requested records was obliged to disclose them to the personal representative, although information relating to or provided by third parties should be redacted.
If you have been prevented from obtaining a deceased person’s medical records and you fall into either of the above categories, please contact us. Our contentious probate team are experienced specialists in obtaining the necessary information to support your investigation of a potential claim.
