Health Records and the Deceased

The Access to Health Records Act 1990 is an oft-overlooked member of the information rights family, but it can have a useful role to play. In the case of Re AB [2020] EWHC 691 (Fam) (Re AB) it was important because the applicant was the personal representative seeking the health records of a deceased sibling; precisely the sort of territory to which data protection law does not apply.

AB was the brother of CD, who had died two years earlier, and was the personal representative of his estate. CD had arranged for some of his sperm to be frozen and stored by a fertility clinic. AB requested the fertility clinic to provide him with a copy of all records relating to the arrangements for the storage and use of CD’s sperm and/or any embryos created using his sperm. The clinic was not convinced that the law permitted them to do so, declined on the basis of patient confidentiality, and so AB made an application to the Family Court.

The matter was heard by the President of the Family Division, Sir Andrew Macfarlane P, and it turned on the construction of two provisions of the 1990 Act. Section 3(1)(f) provides a right of “access to a health record” by a listed category of persons including “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 section 5(4) states that “Where an application is made under subsection (1)(f) of section 3 above, access shall not be given under subsection (2) of that section 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.”

AB argued that section 3(1)(f) created a right of access to two separate categories of person – personal representatives, and persons who may have a claim arising out of the person’s death – and that section 5(4) only applied to the latter, with requests by personal representatives untrammelled by the limitation. The Department of Health and Social Care’s issued guidance supported that interpretation, but the British Medical Association had issued guidance which supported the clinic’s view that section 5(4) applied to any request under section 3(1)(f).

The President agreed with AB, describing the point as “short and straightforward” at [44]. Both AB and the clinic agreed section 3(1)(f) created a right for two different categories of person, which the President agreed were disjunctive. That right was plainly the primary proviso, to which section 5(4) was a secondary limitation: it could not create an ambiguity in the primary proviso which was not there. “Section 5(4) is in the form of a proviso which provides a reasonable and proportionate limitation on the degree of access to a deceased’s medical records which is to be afforded to an individual who seeks to make a claim arising out of the patient’s death. Such an individual can only see records on a “need to know” basis, rather than being given open-ended disclosure of the entire content of the record”: at [47]. The Department’s view was supportive but not necessary to that construction. The clinic was obliged to comply with the request made by AB.

Robin Hopkins provided written submissions in support of AB on behalf of the Department for Health and Social Care.

Christopher Knight