Do Your Medical Records Stay Confidential Forever?

Your privacy rights will die with you, but that does not mean that just anyone will be permitted access to your medical records after you are gone. The extent to which such records should remain under wraps post mortem was analysed in a High Court test case.

A man believed that his brother had, some years prior to his death, arranged to have samples of his sperm frozen at a fertility clinic. As personal representative of his brother's estate, he asked the clinic to provide him with copies of all records relating to the storage of those samples and any use made of them to create embryos. After the clinic refused his request, the man launched proceedings, seeking declarations to the effect that the request was lawful and should be complied with.

Ruling on the matter, the Court noted that the deceased made no lifetime request that his medical records should be kept confidential after his death. In the absence of such a request, the Access to Health Records Act 1990 conferred on his brother, as his personal representative, a general right of access to his medical records. The brother argued that that right was unqualified and that he was not required to give any reason for seeking access to the deceased's records.

The clinic, however, argued that he was only entitled to request information that was relevant to any claim that may arise out of the patient's death. That qualification, it was submitted, applied to personal representatives just as it does to other people, who are only granted access to deceased persons' medical records on a 'need to know' basis. That issue had given rise to conflicting advice to professionals from the Department of Health and the British Medical Association, thus increasing the need for an authoritative judicial ruling on the point.

In preferring the brother's arguments and granting the declarations sought, the Court found that the language of the Act is clear and that the qualification contended for by the clinic does not apply to personal representatives. Without requiring the brother to give an explanation, the clinic was obliged to provide him with the requested copies. That was subject to the proviso that they be redacted so as to remove information provided by or relating to third parties who could be identified from that information.