Articles and Case Studies

Deceased Patients. Who can Access Their Records?

07 Dec 2012

by Dr Jane Deacon

Dr Jane Deacon, Medico-legal Adviser, reviews the legislation surrounding access to deceased patients’ medical records.

Case history

Dr Z received a letter from the widow of one of his patients. Mrs W wrote that she wanted a complete copy of her husband’s medical records. Mrs W was not known to the practice, and she did not give any reason for her request.

Medico-legal issues

It has long been considered that the duty of confidentiality in the doctor/patient relationship survives the death of the patient.

While medical records are the property of the doctor or the practice, the introduction of amendments to the Privacy Act (Cth) in December 2001 established a specific regime for patients to access their records. However, the Privacy Act (Cth) only applies to living persons and so does not address the situation of the deceased patient’s medical records.

In the ACT and Victoria there is specific legislation to deal with the situation of a request for access to the medical records of a deceased patient. In the ACT the legislation1 states that a right (that is a right to access health records) passes to a legal representative of the deceased. In Victoria the legislation2 applies to a person who has been dead for less than 30 years. This legislation allows that the legal representative has the right of access to the records of the deceased patient.

Legal representative is defined as a person who is the executor of the will where probate has been granted, or the administrator of the estate.

Therefore in ACT and Victoria access to the medical records would generally be given to the executor of the will once probate has been granted, or the administrator of the estate.

In all other states there is no specific legislation, and in the absence of any apparent dispute or clear inconsistency with the deceased’s wishes, it is reasonable to give access to the medical records of a deceased patient to the named executor of the will.

Where the doctor is clearly aware of a dispute about the will or about the executor’s access being counter to the deceased’s wishes, the doctor should decline to provide access, but make it clear that the doctor will produce the records to a court on subpoena, or after grant of probate.

Special circumstances arise in the case of bereavement where access can be given to limited and relevant parts of the record at the discretion of the doctor to affected family members. This is in accordance with Good Medical Practice: A Code of Conduct for Doctors in Australia3 which states: When your patient dies, being willing to explain, to the best of your knowledge, the circumstances of the death to appropriate members of the patient’s family and carers, unless you know the patient would have objected.

Where information is requested for the provision of health care to relatives of the deceased, e.g. genetic information, access to limited information may also be provided at the discretion of the doctor.

A request for a copy of the records of a deceased patient should be in writing and include the relevant documentation, such as a certified copy of the will proving his/her appointment as executor. The doctor should make a brief note that the records have been provided, and to whom and on what basis they were provided.

In the case above, the practice manager rang the widow and tactfully explained the situation. Mrs W advised that her son was the executor and that the records were required for possible legal proceedings against Mr W’s former employer. Mr W had died of mesothelioma, which may have been linked to his employment. Mrs W’s son then provided a request in writing, along with the necessary documents, and the medical records were provided to him.

If in doubt, call our 24 hour Medico-legal Advisory Service on 1800 011 255 for further advice.

Summary Points

  • Access to the medical records of a deceased patient can generally be provided to the executor of the will, or the administrator.
  • In ACT and Victoria, general access to the medical records should only be given to the executor or administrator of the estate upon receipt of a written request accompanied by the grant of probate or court appointment of the administrator.
  • Special circumstances apply where access to medical records or health information is requested in a bereavement situation, or for the purpose of the provision of health care to relatives of the deceased patient.

1 Health Records (Privacy and Access) Act 1997 (ACT)

2 Health Records Act 2001 (Vic)

3 Good Medical Practice: A Code of Conduct for Doctors in Australia. Available at: www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx

General Practice, Practice Manager Or Owner
 

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