The Access to Health Records Act 1990 (AHRA) is a law that gives individuals the right to access their health records.
Under section 3(1)(f) of AHRA, where the patient has died those who have a right to request access to the patient’s medical records are: “the patient’s personal representative and any person who may have a claim arising out of the patient’s death”.
In this article we outline when the AHRA is used, explore a case where the record holder refused to release the deceased's medical records, and provide detail of this case's outcome.
It's often necessary to have access to a deceased testator’s medical records when a party wishes to either bring or defend a claim against the validity of the deceased’s will.
In the first instance a request for a copy of the deceased’s medical records, or signed authority to request them direct from the record holder, can be made to the personal representative of the deceased’s estate. The personal representative has a duty to remain neutral and provide relevant information required to help the parties to resolve the dispute.
When faced with requests for disclosure of medical records, the personal representative will need to weigh up their obligations to disclose relevant information with the deceased’s right to confidentiality. In some cases the personal representative might conclude that disclosure should not be provided. However as set out above, under AHRA 'any person who may have a claim arising out of the patient’s death' can request access to the records, irrespective of whether or not they have authority to do so from the personal representative.
The recent case of Tubb & Anor v Rosmellyn Surgery considered the grounds on which a record holder refused to release the deceased’s medical records. The outcome provides a useful authority for future cases of this nature.
In this case the deceased had three daughters: Siobhan and Melanie, who were the claimants in this case, and Stephanie. Between 2010 and 2023 the deceased made three relevant wills:
As is common in cases where there has been a substantial shift towards one beneficiary, the claimants had concerns about the testator’s capacity and the risk of undue influence in the preparation and execution of the 2023 will which disinherited them.
The claimants wrote to Treliske Hospital and Rosmellyn GP Surgery to request copies of the deceased’s medical records under section 3(1)(f) of AHRA. The hospital complied with the request, the GP surgery did not. The GP surgery’s position was that they needed either the consent of the personal representative, in this case Stephanie who had not provided her consent, or an order from the court authorising the disclosure. They argued that 'the contesting of a Will is not a claim arising from the death of a patient' and therefore the claimants were not eligible under section 3(1)(f) of AHRA.
The main issue that the court had to determine in this case was the correct interpretation of the phrase 'arising out of a patient’s death'.
The claimants submitted that the wording is clear and unambiguous, identifying two categories of individuals eligible under section 3(1)(f): personal representatives and potential claimants. On the claimant’s case, they fell into the second category as persons with a probate claim against the 2023 will, and in favour of the 2016 will. As a probate claim cannot be brought during a testator’s lifetime, it naturally follows that their claim is one arising 'out of the death' of the patient. Further, they argued that until either will is proven, it's wrong for the record holders to assume that the person(s) named in a will are the true personal representatives.
The claimants also highlighted that, if probate claims were excluded under section 3(1)(f) of AHRA, it could result in circumstances whereby no one has direct rights of access to the records. For example, where there are no surviving executors and a beneficiary applies for a grant of administration. In that situation - until the grant was issued, the beneficiary would not be a personal representative, and nor would anyone else. Therefore, were a validity dispute to arise, nobody would have the right to access medical evidence which may assist in resolving the dispute.
On the GP surgery’s case, they asserted that a probate claim arises out of events in the testator’s lifetime, i.e. the making of the will, and there is insufficient causal connection between the patient’s death and the probate claim. They compared it to the way in which a beneficiary’s rights to property under a will arises from the testator’s intention to benefit them, not as a result of their death which is merely the trigger for the transfer of the property.
The GP surgery submitted that were probate claims to be included under section 3(1)(f), this would be burdensome and impractical, particularly when considering section 5 of AHRA. That provision sets out cases where rights of access may be partially or wholly excluded, including any records that contain personal data of a third party. In correspondence with the claimants, the GP surgery asserted that claims arising out of the death of a patient should be strictly limited to dependants under the Fatal Accidents Act 1976.
The judge found that that the claimants’ claim did fall within the meaning of 'arising out of the death of the patient' under section 3(1)(f) for the following reasons:
The judge acknowledged that the GP surgery were rightly concerned that medical records contain highly sensitive personal data and patient confidentiality should be properly protected. However, the judge concluded that any increased burden on record holders to comply with requests under AHRA would be minimal.
The judge went on to highlight that the role of record holders is not to determine what information is relevant to a claim, but rather to withhold information where they hold a positive opinion that a particular part of that record is not relevant. In cases of extreme doubt, record holders can withhold disclosure as a matter of caution and make their own application to the court under section 3(6) or section 8 of AHRA, which allows either party to seek a determination by the court if necessary.
Accordingly, it was held that the claimants were entitled to copies of the deceased’s medical records under section 3(1)(f) of AHRA, and that an order compelling the GP surgery to disclose the records be made.
The court’s decision underlines the obligation on record holders to provide relevant information in respect of probate claims, and sets a useful precedent for future requests.
If you require advice or assistance regarding a probate claim, contact our disputed wills and trusts team.
We produce a range of insights and publications to help keep our clients up-to-date with legal and sector developments.
Sign up
