Rights of the Deceased
Access to Health Records Act 1990
Can I access the health records of someone who has died?
For the Trust the ethical obligation to respect a patient’s confidentiality extends beyond death. The Information Tribunal in England and Wales has also held that a duty of confidence attaches to the health records of the deceased under Section 41 of the Freedom of Information Act 2000.
Who can apply for access?
If you want to see health records of someone who has died, you can Make a Subject Access Request to the Trust under the legislation Access to Health Records Act 1990.
Under the terms of the Act, you will only be able to access the deceased’s health records if you are either or unless they requested confidentiality while alive, a patient’s:
- Personal representative (the executor or administrator of the deceased person’s estate)
- Someone who has a claim resulting from the death (this could be a relative or another person).
Who must give access?
After a patients death, GP health records may be held by the relevant CCG, hospital records may have been retained by the hospital the patient attended or they may have been sent to a local archive storage.
The Trust is required to take advice before making a decision about disclosure. This could be from several health professionals who have contributed to the care of the patient during the period to which the application refers. If no appropriate health professional who has cared for the patient is available, a suitably qualified and experienced health professional will provide advice.
Once the Trust is satisfied the person requesting the information is entitled to it, access will be given within the specified time limits. Access will be given either by allowing the applicant to inspect the records, or extract, or supplied a copy if this is requested.
How long does the Trust have to comply?
Where the application concerns access to records or parts of records that were made in the 40 day period immediately preceding the date of application, access will be given within 21 days. Where the access concerns information, all of which was recorded more than 40 days before the date of application, access will be given within 40 days.
Can a fee be charged?
- For access to the information where records were made more than 40 days before the date of the application for access – maximum £10
- For providing access to information if the records have been amended or added to in the last 40 days – no fee may be charged
- For supplying a copy, a fee not exceeding the cost of making the copy and postal costs may be charged
Cost of CD; - £25 per disc
Cost of Photocopying; - 25p per page
Post & Packaging; - dependent on weight etc.
- Health professionals may charge a professional fee to cover the costs of giving access to the records of deceased patients that is not covered by legislation.
What information will not be disclosed?
- If it identifies a third party without that person’s consent, unless that person is a health professional who has cared for the patient
- In the opinion of the relevant health professionals, it is likely to cause serious harm to a third party’s physical or mental health
- The patient gave their information in the past on the understanding that it would be kept confidential
- No information at all can be revealed if the patient requested non-disclosure.