Personal Injury and Medical Negligence Limitation Period
Losing a loved one when you think it may be because they received poor medical care is incredibly stressful at a time when family and friends are grieving their loss. Often, people want to see a written record of the final days of their loved one and what happened to them, or they might want to go through years of records to ascertain whether there was diagnosis that may have been missed, such as cancer.
The rules relating to the disclosure of a deceased person’s medical records are diﬀerent to the general rules about release of medical records. It can be a confusing process to navigate because the General Data Protection Regulation (GDPR) which came into force by the Data Protection Act 2018 which gives automatic access to your own records, does not apply when trying to access the records of someone who has died.
Only certain people have the right to access the medical records of someone who has died and this is covered by the Access to Health Records Act 1990. This Act allows disclosure of the medical records to:
You will need to provide evidence that you fall under one of these two categories. This is fairly straightforward if you are looking after the estate as per (1) above. The Personal Representative can provide a copy of the Grant of Probate (if you are the Executor of the Will), or a copy of the Grant of Letters of Administration (if you are the Administrator). You do not need to provide any reason for requesting the records. However, if the deceased person made a specific request that records should not be accessed, this should be respected. For example, if the deceased stated that they did not want any records prior to a specific date, or relating to a specific issue, to be revealed to anyone.
The situation becomes more complicated if you are not the Personal Representative, but believe you may have a claim resulting from the person’s death. For example, a person may die, leaving a spouse and children. However, the deceased person may have chosen to name someone else as the Executor of his will (for example, his brother). In practical terms, the easiest way to obtain the records is always for the Personal Representative to request them. Problems can arise when the Personal Representative does not want to bring a claim for the estate because they may not want to be involved in a legal process such as a medical negligence claim and therefore refuse to request the records.
If someone other than the Personal Representative feels that that are entitled to bring a claim they will need to show evidence of their relationship with the deceased. They will also need to say why they want the records. It is usually not enough to say that you are worried about some aspect of their care or you want to write a letter of complaint and need the records to do so. You will need to set out specific concerns about the healthcare the deceased received that has led you to considering a claim for medical negligence or some contravention of the deceased’s rights under the Human Rights Act. These claims must be brought within certain time limits and so if you feel like you do have a claim and access to records is proving difficult or taking a very long time, you should speak to our specialist medical negligence team. More information on time limits can be found here.
If you do not fall under the categories of people entitled to request the records then access to a deceased person’s records is decided on a case-by-case basis. The person requesting the records would need to write to the hospital or GP demonstrating that:
The GP or hospital will take account of the wishes of the deceased person prior to death, the views of the surviving family, any distress which the release of this information may cause to a living person and any loss of privacy that may aﬀect the reputation of the deceased.
To request GP records, you should write to the Practice Manager at the deceased’s GP surgery. When a person has died, the GP surgery often no longer store the records and the records are sent to Primary Care Support England. The Practice Manager will be able to tell you where they have been stored.
To request NHS hospital records, apply to the Access to Medical Records Team at the Hospital which the deceased person attended. The Hospital will have information on their website that provides the precise address details, so it is worth checking because the records may be stored with another hospital within the same Trust. If you cannot ﬁnd this information it can be worth making a call to the Hospital’s Access to Medical Records Team to ensure that you are writing to the correct department and address.
To request hospital records where you have paid for private treatment, write to the private hospital involved, naming the doctor who provided your care and sent it to the Medical Records Manager/Access to Health Records Team.
If the records were updated during the 40 days before the date of your application, you should be given access within 21 days. If the records were updated more than 40 days before the date of your application, you should receive the records within 40 days.
None. Following the implementation of GDPR, the Access to Health Records Act 1990 was also changed so that the records of a deceased person must be provided free of charge.
Punam Sood is a Senior Associate in the Clinical Negligence and Personal Injury Department. She has experience of a wide range of claims, including birth injury and acquired brain injury claims, claims relating to fatal accidents, those involving gynaecological injuries following childbirth and those due to the delayed diagnosis of cancer.
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