Can I allow access to a deceased patient’s notes?
Published: 02 Mar 2017 By Justine Hall, David Coleman, Barry Parker
A family member of one of my patients who has recently died wants to see the deceased patient’s medical record. Should I give it to them?
Dr Justine Hall: Make sure the applicant is eligible to access it
Access to a deceased person’s medical records is covered by the Access to Health Records Act 1990 as the Data Protection Act only applies to the living.
The relative or applicant must demonstrate their eligibility to have access to the records. They might be an executor of a will, usually proved by a copy of the will or a solicitor’s letter, or ‘anyone else with a valid claim’.
But it is often difficult to prove a valid claim if the applicant is not an executor. For example, hereditary disease in non-direct relatives (those who are not parents, siblings or children) may not be regarded as a valid reason to see the medical records.
Even then, the act only gives right of access to relevant information, not the full medical record. This requires a claim with sound reasons and explanations from the relative so you can extract the relevant information.
Unclear requests should be referred to your practice’s Caldicott guardian, who will establish what information should be disclosed. The Caldicott guardian may even need to establish whether seeing the records of the applicant is appropriate, for example in cases of hereditary disease.
It is important to note that a power of attorney also expires with the deceased. It is the executor that has control of the affairs of the deceased and a former power of attorney in the patient’s life does not automatically have a valid claim.
Ideally all practices should have an established policy to cover this eventuality.
There is guidance from NHS Choices but if in doubt, seek advice from your defence organisation or the information governance manager at your clinical commissioning group.
Dr Justine Hall is a GP in Guildford, Surrey, and planned care clinical lead at NHS Guildford and Waverley CCG
Dr David Coleman: Only release information relevant to the claim
Prior to any release of information, the relative’s identity should be confirmed, as should the nature of their claim. You can’t give access just for curiosity. They must be making a specific claim – for example, dissatisfaction with end-of-life care, or even a missed diagnosis for a symptom presenting years earlier (a cough that wasn’t followed up in a patient later diagnosed with lung cancer).
BMA advice confirms that unless the deceased explicitly requested confidentiality while alive, their representatives have ‘a right of access to information in the deceased person’s records directly relevant to a claim’. The key is in the wording here. For example, if a family member makes a complaint about palliative care provided to their relative, you should release notes relating to home visits and prescribing information from the end-of-life period, but perhaps not notes relating to an earlier phase of their illness. A clinician should review the notes to make appropriate redactions.
Access should granted within 21 days (for requests relating to the 40-day period prior to the application) or 40 days (for applications relating to an earlier period). As there is no great time pressure on the practice, it is better to get things right, rather than rush the response. BMA guidance suggests that if the notes have been amended in the last 40 days, no fee should be charged. For older records, a maximum fee of £10 is recommended.
Dr David Coleman is a GP in Conisbrough, South Yorkshire
Dr Barry Parker: Check the patient didn’t leave instructions about disclosure
The duty of medical confidentiality extends beyond the death of a patient and careful consideration must be given to any requests for disclosure.
Access may be granted to the deceased’s personal representative (the administrator or executor of their will) or to anyone who may have a claim arising from the death, although there are complications. For example, in circumstances where there is reason to believe another family member or interested party might object, doctors should contact their defence organisation for advice before disclosing records.
Before allowing access to records, check whether the patient had specifically requested that their records remain confidential after death. If this is the case, the patient’s wishes should be respected. This could be from a note made at the patient’s request in the records. Disclosure may also be withheld if the record holder is of the opinion that information was provided by the patient in the expectation that it would not be disclosed, or that information was obtained as a result of any examination or investigation to which the patient consented in the expectation that the information would not be disclosed.
It is also important to redact third-party information before disclosure. Any information that may cause serious mental or physical harm to anyone if disclosed should also be redacted.
The GMC’s confidentiality guidance (paragraphs 70 to 72) advises that doctors may disclose relevant information when a partner, close relative or friend asks for information about the circumstances of an adult’s death, and the doctor has no reason to believe the patient would have objected to such a disclosure.
Dr Barry Parker is a medicolegal adviser at the Medical and Dental Defence Union of Scotland