Re AB  EWHC 691 (Fam)
Access to records of deceased patient The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
In re AB
2020 Feb 19; March 23
Sir Andrew McFarlane P
Administration of estates— Personal representative— Access to deceased’s health record— Personal representative requesting access to medical records of deceased held at fertility clinic— Clinic declining request on basis personal representative unable to show relevance of records to “claim arising out of the patient’s death”— Whether right of personal representative to disclosure fettered— Access to Health Records Act 1990 (c 23), ss 3(1)(f), 5(4)
Some years before his death a man made arrangements with a fertility clinic for the freezing and storage of his sperm. After the man’s death the personal representative of his estate requested the clinic to provide him with a copy of all records relating to the arrangements for the storage and use of the deceased’s sperm and/or any embryos created using his sperm. The clinic declined the request. The personal representative issued a claim for a declaration of the lawfulness of the request and an order for disclosure, while accepting that information relating to third parties would be redacted. He submitted that he was entitled to unfettered access to the health records by virtue of section 3(1)(f) of the Access to Health Records Act 1990 and his position as the deceased’s personal representative. The clinic submitted that section 5(4) of the Act restricted an application for access to the records of a deceased, by either the personal representative or a person involved in a potential claim, to information within those records relevant to “a claim arising out of the patient’s death”.
On the claim—
Held, declaration granted and order for disclosure made. The wording of section 3(1)(f) of the Access to Health Records Act 1990 was plain on its face and clearly established two distinct categories of individual, namely the patient’s personal representatives and any person who might have had a claim arising out of the patient’s death, and the reference to “a claim arising out of the patient’s death” was expressly tied to the second category, and not to a personal representative. Section 5(4) of the 1990 Act was subservient to section 3(1)(f) and in the form of an unambiguous proviso which provided a reasonable and proportionate limitation on the degree of access to a deceased’s medical records afforded to an individual seeking to make a claim arising out of the patient's death, a personal representative’s right to access health records was free-standing and was not confined to disclosure of information which was relevant to a claim which may have arisen out of the patient's death. Accordingly, the application for disclosure of the deceased’s medical records was valid and the clinic was obliged to provide the disclosure sought (paras 25–28, 45–47, 50, 51).
Jenni Richards QC and Catherine Dobson (instructed by Bryan Cave Leighton Paisner llp) for the personal representative.
Claire Van Overdijk (instructed by DAC Beachcroft llp) for the clinic.
[Reported by:] Thomas Barnes, Solicitor