Losing a loved one is devastating enough. When this occurs in the context of concern about poor medical care, it can be even more upsetting. The rules relating to the disclosure of a deceased person’s medical records are different to the general rules about release of medical records, and it can be a confusing process to navigate.
Who can request medical records after a death?
Only certain people have the right to access the medical records of someone who has died. The Access to Health Records Act 1990 allows disclosure of the medical records to:
- The Personal Representative of the person who has died. If the deceased person has a will, the Personal Representative is the Executor of the will. If there is no will, the Personal Representative is known as the Administrator. These claims are covered by the Law Reform (Miscellaneous Provisions Act) 1934;
- Anyone who may have a claim resulting from the person’s death. Who does that mean? In essence, it means the deceased person’s estate, (again, the Executor or the Administrator) or the “dependants” of the deceased. There are strict criteria as to who is considered a “dependent”; 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. These claims are covered by the Fatal Accidents Act 1976.
You will need to provide evidence that you fall under one of these two categories. This is fairly straightforward if you are looking after the estate. The deceased’s Personal Representative can provide a copy of the Grant of Probate (if you are the Executor of the will), or a copy of the Grant of Letters of Administration (if you are the Administrator).
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 person may have chosen to name someone else as the Executor of his will (for example, his brother). In practical terms, the easiest way to obtain the records is for the Personal Representative (in this example, the deceased’s brother) to request them. Problems can arise when the Personal Representative does not want to bring a claim for the estate. How does the spouse provide evidence that they are entitled to bring a claim? Usually, it will be sufficient to provide documentary evidence of your relationship with the deceased and to indicate a very broad outline of your concerns about the healthcare received as a result of the death.
If you fall under any of the categories listed above, you should write to the hospital or GP stating that this is the case.
What happens if you do not fall under the categories of people entitled to request the records?
If this is the case, 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 person;
- Access to the records is in the public interest.
The GP or hospital will take account of the wishes of the deceased person prior to death, the views of the surviving family, any distress which 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 if you have this information. If they are no longer held at the practice, you should write to the local Clinical Commissioning Group (CCG).
- To request NHS hospital records, apply to the Medical Records Manager/Access to Health Records Team at the NHS Trust which the dead person attended. The NHS Trust may have information on their website that provides the precise address details, so it is worth checking. If you cannot find this information it can be worth making a call to the Trust’s Access to Medical Records Team to ensure that you are writing to the correct department and address.
- To request private hospital records, write to the private hospital involved, addressing your letter to the Medical Records Manager/Access to Health Records Team.
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.
You will probably have to pay a fee to obtain the medical records of a person who has died. It is a good idea to ask what the cost will be when you make the application. Do remember that if the records have been updated in the last 40 days, there should be no charge.
If the records have not been updated in the last 40 days, the maximum charge is £10. However, the Trust or GP is entitled to charge extra for the cost of making copies and posting the records to you. There is no limit on this charge, but it should be reasonable and proportionate. To give guidance, the maximum fee which can be charged to access a living person’s medical records is £50, including all copying and postage costs; if the fee you are charged to access a dead person’s records greatly exceeds this you should query this with the GP or hospital providing the records.