MIGA’s legal services team often receives calls from doctors and practices regarding requests for a deceased patient’s clinical records.
A recent scenario
A recent enquiry was a request from a son of a deceased patient for a copy of his parent’s clinical records. However he didn’t have authority to access them as the Public Trustee was the named executor in the Will. The initial request was made by the son by phone.
Following our intervention:
- The son’s request was put in writing
- A letter was obtained from the Executor verifying the son’s identity and providing authority to release a copy of the records to him
- The deceased patient’s records were reviewed and there were no grounds for withholding access (e.g. sensitive material or the like)
- The reason for request was considered
- The decision was made to release a copy of the records to the son.
It shows it is important to carefully assess any requests for a deceased patient’s
Duty of confidentiality survives death
Doctors’ ethical and legal duties to protect the confidentiality of clinical records continues even after the patient has died.
Information from the medical records of deceased persons cannot be released other than:
- According to statutory requirements (e.g. certain government authorities)
- Under legal compulsion (e.g. subpoena, summons or warrant), or
- With the consent of the executor or administrator of the person’s estate (even then see commentary below).
Do not assume the patient’s next of kin has legal authority
Generally clinical records for a deceased patient should only be released to the executor or administrator of a patient’s estate. The executor of the patient’s estate is the person named in their Will whereas an administrator is appointed by a court where a person does not have a Will.
If requested directly by the executor or administrator, you should ask to see a copy of their appointment.
A request by lawyers acting for the executor or administrator would normally be sufficient without need to see the appointment.
In New South Wales, there is scope to release clinical records relating to deceased patients to their immediate family members on compassionate grounds.
Reason for the request
Consider the reason for the request being made.
It is important to be cautious about releasing information where there may be disputes between family members, e.g. in disputes over wills or life insurance claims. Some requests could be motivated by reasons that are not in the best interests of the deceased patient and/or outside the scope of the authorised representative.
We recently had a query from a Victorian GP about a lawyer’s request for a deceased patient’s entire records by the daughter of a deceased. The patient died without a Will or legal representative (i.e. executor or administrator) appointed. The doctor declined to provide the notes as no legal representative was appointed. Furthermore, s 95 of the Health Records Act 2001 (Vic) effectively only allows a “legal representative” to access a deceased patient’s records. The doctor was justified in not releasing the deceased patient’s records.
Sometimes a decision is made to disclose for compassionate reasons such as when a relative of a deceased patient may want to understand the circumstances of a loved one’s death. Disclosure should be limited in such situations and carefully weighed against your legal obligations to protect confidentiality and the privacy of your deceased patient.
When not to disclose/withhold clinical records
If there is a reasonable belief access would pose a serious threat to the life, health or safety of any other person or the public generally, or where access would unreasonably impact upon another individual’s privacy then you are normally entitled to refuse access. You need to take into consideration any wishes expressed by the individual patient prior to their death. For example, the patient may have objected whilst alive and if this is the case this is a ground for refusing access.
Documentation/ verifying identity
When providing a copy of clinical records it is important to maintain a record of:
- Who requested access
- Grounds for disclosure
- Information provided
- Date it was provided.
In some places (e.g. ACT) requests must be made in writing. We recommend requests for any deceased person’s records be made in writing regardless. This request will form part of the patient’s records.
It is very important to verify the identity of the authorised person who is seeking access of the records. Sight documentation and take copies of photo identification (driver’s licence or a passport) to place in the records.
If in any doubt about how to handle a request for a deceased patient’s records, contact MIGA’s Legal Services team.