Obtaining Medical Records of the Deceased

Medical records can provide significant evidence in inheritance disputes. It is often necessary to apply for copies of medical records in circumstances where the Deceased’s testamentary capacity to make a Will and/or whether the Deceased knew and approved the contents of the Will are in question.

A medical expert may be required to give a professional written opinion to the court on the issue of whether the Deceased had capacity to make a Will and in such circumstances the Expert will be provided copies of the Deceased’s medical records to enable them to form their opinion on a retrospective basis.

Primary Care Support England (PCSE) guidance on accessing GP medical records for deceased patients

If you are looking to make a request for the GP medical records of a deceased individual, you will need to contact their last registered GP practice.

PCSE can provide details of the last GP practice if it is not known (patient registration information stored by PCSE includes current GP, last GP, and GP registration history).

If the GP Practice is now closed PCSE will process requests for medical records of a deceased individual.  Similarly, if the deceased person was not registered with a GP practice (known as unregistered patients) PCSE may be able to assist in responding to a subject access request for access to medical records.

NHS England general guidance on accessing other medical records for deceased patients

To request NHS hospital records, a party can apply to the Access to Medical Records Team at the Hospital the deceased person attended.

The NHS England guidance differentiates between medical record requests from (1) personal representatives of a deceased and (2) people who have a claim arising from the death of the deceased.  The obvious point is of course that if a Will is disputed then a personal representative is likely to have been blocked from obtaining a Grant of Probate.  The medical records can prove key to resolving a Will validity dispute.

Helpfully a stalemate situation does not occur because access is not limited to personal representatives.

• Personal representatives

A personal representative of the estate of the deceased (a person holding the Grant of Probate or Letters of Administration) can request access to a health record under the Access to Health Records Act (AHRA) 1990. For example, should the records be of relevance to the investigation of an inheritance dispute. 

If the request for access to the health record is made by a personal representative, then information can only be withheld or redacted from the records if the AHRA permits it. Information can be withheld if:

• the deceased expressly indicated they did not want parts of their record to be disclosed
• the record, if disclosed, would be likely to cause serious harm to another person.
• the record of the deceased refers to another individual (who is not a treating healthcare professional).
• the record contains information provided by the patient, or resulting from an examination or treatment, which the record holders have reason to believe the patient would have felt particularly sensitive about and would not have expected to be disclosed.

The AHRA does not apply to record entries made before 1 November 1991 when the Act came into force. This means that if access was granted to the record of a person born before 1 November 1991, only the entries made after 1 November 1991 are legally required to be shared, unless it is necessary to see the earlier entries to understand the later ones. However, record holders may decide to share records from before 1 November 1991 in line with the guidance set out above.

The AHRA only applies to records made by or on behalf of a healthcare professional in relation to the care and treatment of the individual. This includes such records made by social care workers who are registered with the Health and Care Professions Council. Outside this, there is no equivalent provision granting a right of access to social care records. However, NHS England recommend as a matter of good practice that a personal representative be granted access to the social care records of a deceased service user on the same basis, and subject to the same restrictions, as would arise under the AHRA.

• People who have a claim arising from the death of the deceased

Someone who has a claim arising from the death of the deceased can also request access to the health records of the deceased under the AHRA. If they do not have the authorisation of the personal representative, the medical record holder will enquire about and possibly request evidence of the nature and basis for their claim and will only disclose information which is relevant to the claim. If the information is relevant to the claim, it can only be withheld on the grounds permitted under the AHRA, as set out in the bullet points in the section above.

No equivalent right of access to social care records is given to those who have a claim arising out of the death of the deceased. Such individuals can only access the social care records with the authorisation of the personal representative, or by obtaining a court order.