Access to Deceased Patients' Records

Case history

As Olive’s GP, you were aware she favoured her oldest nephew, Primo. You had even documented that she left her house to him in her will. Olive had never married, so Primo brought Olive to her appointments and attended the consultations. Olive confided to you that she only trusted Primo to know about her health.

After Olive’s death, the relatives disputed the will. Primo’s brother Ultimo has written to the practice requesting a copy of the records, wanting to dispute the distribution under the will and Olive’s capacity to write it.

Medico-legal issues

ACT and Victoria – absent dispute over the will or right of access

In the ACT¹ and Victoria² there is specific legislation to deal with access to the medical records of a deceased patient (the Victorian Act excludes those dead for more than 30 years).

Both ACT and Victorian legislation (possibly also in NSW³ as an “authorised representative”) provides that the legal representative of the deceased patient can exercise the powers formerly conferred on the patient. A legal representative is defined in both Acts as the executor of the will where probate has been granted, or the administrator of the estate of the deceased.

A recent (part heard) Victorian Civil and Administrative Tribunal case⁴ found that as the legal representative “stands in the shoes” of the deceased, the prior wishes of the patient cannot stop the legal representative from obtaining access to the records. The deceased’s wishes in relation to disclosure to other third parties should still prevail.

Where there is no legal representative (or if there is one, with the legal representative’s consent), you may provide a limited disclosure of information to an immediate family member of the deceased for compassionate reasons (there is some recognition of close friends or nominated receivers of health information), where the disclosure is not contrary to any prior wish of the deceased.

In both Acts the right of a legal representative is exercisable as far as “circumstances reasonably permit”, recognising that the law may not provide a solution in all circumstances.

Outside of the ACT or Victoria – absent dispute over the will or right of access

In all other states and territories there is no specific applicable legislation.⁵ In the absence of a dispute over who is the legal representative (e.g. over the will) or clear inconsistency with the deceased’s wishes, it is reasonable to give access to the medical records of a deceased patient to the legal representative. Where there is no legal representative, you can consider disclosure limited to the purpose of the request on compassionate grounds to an immediate family member, as per the ACT and Victoria.

When records are requested or provided

A request for a copy of the records of a deceased patient should be in writing and include the relevant documentation, such as a certified copy of the will proving the legal representative’s position, or proof of identity for an immediate family member. You should make a brief note that the records have been provided, to whom, and on what basis they were provided.

Limited disclosure for compassionate reasons

The Medical Board Code of Conduct⁶ envisages that limited disclosure of the patient’s health information, in the absence of their prior objection, can be made to explain the death to family and carers. This would not typically extend to the release of the entire records. Where there is a legal representative, they should first be consulted in the ACT, Victoria and NSW. This is good practice elsewhere in Australia.

Disputes over the will or right of access

Where you are clearly aware of a dispute about the will, legal representative, right of access, or access being counter to the deceased’s wishes, you should seek advice from MDA National. We are aware of complaints and legal cases arising out of such matters, so obtaining advice is important.

Outcome

In Olive’s case above, the doctor sought advice from MDA National. As there was another earlier will, the dispute over the will meant that it was not possible to identify the legal representative. There were two possible alternative executors, depending on which will was valid, and neither had obtained grant of probate. MDA National obtained agreement between all the parties (potential executors) for consent to release. The matter was also discussed with Primo, as a suitable immediate family member. The doctor could have insisted on a court order being issued by the parties. However, the above solution was timelier and avoided additional costs for the parties.

Summary points

• You have an ongoing legal duty of confidentiality to your deceased patient.
• Access to the medical records of a deceased patient can generally be provided to the legal representative of the patient (typically the executor of the will or administrator of the estate).
• The prior wishes of the patient are paramount when considering release to other parties.
• In the absence of a dispute over the will and no legal representative, limited release of records may be appropriate, if requested by an immediate family member on compassionate grounds. There is some leeway in the definition of immediate family members, so requesting parties, e.g. previously appointed guardians, close relatives or friends, or previously nominated health information receivers, might need to be considered.
• Limited disclosure in a bereavement situation, or for the purpose of the provision of health care to relatives of the deceased patient, may be appropriate under similar principles, presuming this is not contrary to the prior wishes of the deceased or the legal representative.
• Seek advice where there is a dispute over the will – no legal representative, disagreement about who should have access to the records, or a request contrary to prior patient wishes.

Dr Julian Walter
Medico-legal Adviser
MDA National

References

1. Health Records (Privacy and Access) Act 1997 (ACT) s12; s13B; s27; Dictionary. Available at: austlii.edu.au/au/legis/act/consol_act/hraaa1997291/
2. Health Records Act 2001 (Vic) s3; s95; s31; HPP2.4. Available at: austlii.edu.au/au/legis/vic/consol_act/hra2001144/ 
3. Health Records and Information Privacy Act 2002 (NSW). Available at: austlii.edu.au/au/legis/nsw/consol_act/hraipa2002370/ It is not clear from s8(1)(d) whether an executor/administrator of an estate would meet the definition, as they do not act for an “individual”.
4. Wolstencroft v Zola (Human Rights) [2015] VCAT 1790 (12 November 2015) at [46]–[48]. Available at: austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2015/1790.html?stem=0&synonyms=0&query=zola 
5. The Commonwealth Privacy Act 1988 does not apply to deceased records.
6. Medical Board of Australia. Good Medical Practice: A Code of Conduct for Doctors in Australia. 2014. 3.12.11. Available at: medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx