Request for deceased patient’s notes
Before deciding to release a deceased’s patient’s records, you would have to consider;
- the Medical Council Guidelines
- whether the deceased was a GMS patient
- whether the request was made under the Freedom of Information Acts (FOI)
Section 32.1 of the Guidelines state
“32.1 Patient information remains confidential even after death. If it is unclear whether the patient consented to the disclosure of information after their death, you should consider how the disclosure might benefit or cause distress to the deceased’s family or carers. You should also consider the effect of disclosure on the reputation of the deceased and the purpose of the disclosure. Your discretion in this area might be limited by law. See also paragraph 67 in relation to Open Disclosure and Duty of Candour.”
As per the Medical Council Guidelines, individual discretion in this area may be limited by law.
In making your assessment, the factors you should consider include:
- The reason for the request.
- The confidentiality of personal information.
- Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death. If, however, the deceased had refused to release the records during his/her lifetime or had left written instructions in a will or other document that the records were not to be released, there would have to be compelling reasons for overturning the deceased’s expressed wishes.
- Has the person outlined arrangements in his or her will or other instrument in writing consenting to release of personal records? In the absence of prior consent of the deceased during his or her lifetime to the release of the information sought, consent should be sought from the personal representative or executor of the deceased’s patient’s will. If that consent is not forthcoming, the doctor must protect the confidentiality of the records.
- Consider the nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased. For example, was the relationship amicable or acrimonious? Exercise caution if you suspect there is a dispute between siblings/relatives and/or carers.
- Is the request being made by the personal representative or executor of the deceased patient’s will? To verify this, and ensure that the confidentiality of the deceased patient’s information is protected it is usual to ask for the request to be made by the solicitor acting for the personal representative or executor. It is important that such a solicitor confirms that they are acting for and on behalf of the personal representative or executor when making such a request.If no such solicitor is retained, the doctor must verify that the personal representative or executor is actually acting as such, when making the request.
- Consider would the release damage the good name and character of the deceased? The effect of release of the records on the good name and character of the deceased should be considered e.g. whether disclosure of the information would, without just cause or excuse, lower the standing of the person in the eyes of right thinking persons or leave the person open to ridicule.
- Consider the nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing. Consider if it is appropriate to redact sensitive information about the deceased before releasing a copy of the deceased’s records.
- We refer you to Section 33.5 of the Guide which states
“Patients have a right to get copies of their medical records except where this is likely to cause serious harm to their physical or mental health. Before giving copies of the records to the patient, you must remove information relating to other people, unless those people have given consent to the disclosure.”
While the above section does not specifically apply to a deceased patient’s records, we advise that before you release copy records to anyone you review the records carefully and consider, on a case by case basis, the requirement to redact all information in relation to third parties.
- In terms of best practice we would recommend that as a matter of professional courtesy, and insofar as disclosure may involve disclosing a consultant’s letters or documents, the consultant should be informed of the pending disclosure before the records are actually released in copy form.
- The original records are retained within the practice and photocopies of the records will be provided.
- If appropriate, make inquiries to find out what steps will be taken to protect the information once released.
The main objective here is to be as helpful as possible to the family and not to impede or obstruct the request in any way. However, this approach must be balanced by the need to ensure that breach of confidentiality towards a deceased patient is appropriate.
Considerations specific to requests for a deceased GMS patient’s records
- Where GPs receive requests for deceased GMS patients’ records that specifically refer to the FOI Act, the requests must be referred to the HSE for processing as the HSE deem a deceased patient’s health record as information of such a sensitive nature that the access request must be dealt with through the FOI process.
- GPs should refer the requester to the relevant HSE body and application form which can be found here – HSE Website
- In such situations it remains incumbent on the GP to fully set out to the FOI Officer any relevant information or concerns which they may have with regard to any release or possible redaction of such records.
- Even if the requester does not specifically refer to the FOI in their request for access to a deceased GMS patient’s records, unless the request is extremely straightforward without any complicating factors, the GP should refer the requester to the HSE FOI process as described above.
- The HSE would then have to determine that the applicant is entitled to the notes. THE HSE will apply the principles such as those set out in paragraphs 1 to 12 above.
Each request for records is to be considered on a case by case basis. If you have any queries in relation to a request for a copy of a deceased patient’s medical records you should contact the advisory team at Medisec.
The contents of this publication are indicative of current developments and contain guidance on general medico legal queries. It does not constitute and should not be relied upon as definitive legal, clinical or other advice and if you have any specific queries, please contact Medisec for advice.