Who has access to medical records of a deceased relative?

Oct 21, 2016

Relatives may be eager to understand more about the circumstances when a family member dies, and request access to the medical records. This needs to be considered carefully as there are different rules for individual health care providers and hospitals for who can access the medical records of a deceased person.

Accessing hospital records

A recent case considered by the Civil and Administrative Tribunal in NSW clarifies one circumstance where a family member can access the hospital records of a deceased person.

In this case, the grand-daughter of an elderly woman with dementia applied for access to her grandmother’s clinical notes, as she was concerned about the treatment provided prior to her death. She also said she was seeking closure following her grandmother’s death.

The application was made under NSW legislation that enables access to government information unless there is an overriding public interest against disclosure. The hospital asserted there was an overriding public interest against disclosure because of confidentiality and privacy considerations.

The tribunal disagreed and found in favour of the grand-daughter. The tribunal noted the personal factors of the application which favoured disclosure including the close relationship the grand-daughter had with her grandmother and her desire to seek information about the circumstance of the death to help her to understand and to gain closure.

Based on this case in NSW, a representative of a deceased person can make a formal application for access to records held by government agencies, including public hospitals, under the Government Information (Public Access) Act 2009 (NSW). Applications to private hospitals can be made under the Health Records and Information Privacy Act 2002 (NSW).

Individual health service providers

Legislation in ACT and Victoria states that a legal representative of a deceased person has a right to request access to their health records held by an individual health service provider. “Legal representative” is defined as the executor of the will or the administrator of the estate.

In the absence of any legislation permitting disclosure in the other states and territories, it is generally accepted that the executor of the will has a right to access the medical records of a deceased person. Exceptions include where the wishes of the deceased are clear and if the appointment of the executor is disputed.

This means family members who are not executors or legal representatives may not automatically gain full access to medical records of a deceased relative from an individual health service provider. There are situations, however, where records can be provided as part of a doctor’s ethical duty to patients.

According to the Medical Board of Australia’s Code of Conduct, good medical practice in end-of-life care includes “When your patient dies, being willing to explain, to the best of your knowledge, the circumstances of the death to appropriate members of the patient’s family and carers, unless you know the patient would have objected.”

Key take-out

Make sure you know whether you are able to provide access to medical records before doing so.

There are limited circumstances where family members can access the health records of a deceased relative. This will depend on the state or territory they are in and whether the health provider is a hospital or government agency or an individual health service provider.

Learn more

Members who need more advice can contact our Medico-legal Advisory Service on 1800 128 268.

Visit the Avant Learning Centre for more information on documentation, communication, managing difficult patients, privacy and confidentiality.

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