Accessing the Records of Deceased Patients

30th August 2022

The April 2022 Contract changes included a change to previous arrangements relating to the records of deceased patients; this change was then deferred but has now been implemented from 1 st August 2022.

Previously, PCSE collected and then, if necessary, arranged access to deceased patient records, but this will now become the responsibility of the patients’ last registered GP practices, except in three circumstances: -

• If the deceased’s last registered practice is now closed
• If the patient wasn’t registered with an NHS GP when they died
• At NHS England’s discretion if the applicant has a genuine reason for not going through the deceased last registered practice.

PCSE offer a public information service to identify a person’s last registered GP practice if an applicant doesn’t know this.

The quid pro quo is that practices are no longer required to print off the electronic record of deceased patients and return this to PCSE. PCSE will still accept the return of current paper records within the Lloyd George envelope(s). Applications for deceased patients’ medical information are not made as Subject Access Requests, they are made under the Access to Health Records Act 1990, and there are separate provisions within this Act.

The GMC provides specific information in relation to disclosing such information, available at Paras. 134 – 138 of its guidance on confidentiality, available at: - Managing and protecting personal information - ethical guidance - GMC (gmc-uk.org)

The underlying premise is that a Duty of Confidentiality in relation to patient health records continues after death; this would be particularly important:

• If a patient had specifically requested this, but in some circumstances, information must be disclosed.
• If requested by a person who has a right to access this information under the Access to Health Records Act 1990. 2
• If requested by a Coroner, or as part of a legal investigation, such as a fatal accident enquiry

As part of responding to your professional Duty of Candour. There are also circumstances in which the GMC recommends GPs consider the circumstances of each case and where they may decide to release some information, such as:

• where a parent asks for information about the circumstances and causes of a child’s death
• where disclosing information is likely to benefit the patient’s partner or family, and there is no reason to believe the patient would have objected.
• where disclosure would help the resolution of investigations relating to complaints, adverse incidents, or audit (where these are not based on statute)
• where disclosure fulfils a public interest in protecting others from the risk of death or serious harm. Colleagues should consider discussing these requests first with, for example, their Indemnity Organisation or the LMC, if they are unsure of the most appropriate approach.

The Access to Health Records AHR Act only applies to written records made on or after 1st November 1991; records prior to this should not be disclosed. Access is only available to:

• The patient’s personal representative (the Executor of the Will or Administrator of an Estate)
• Any person who may have a claim arising out of the patient’s death.

The time limit for responding to an AHR request is 40 days.

Practices should request confirmation of an applicant’s identity and current address, and in the case of those applying as a personal representative of the deceased, practices should request one of the following:

• The Grant of Probate
• A letter of Administration
• A certified copy of the deceased’s Last Will and Testament

as this will independently identify the applicant.

Other applicants (stating they have a claim arising out of the patient’s death) should provide a letterheaded legal confirmation of their status in this regard.

If, in order to respond to the AHR request, a practice needs the Lloyd George records already returned to PCSE, it can request these. The PCSE website states they may be returned to the practices as the paper record or by being scanned. Practices can only respond in relation to the information they hold, so applicants may need to be told they will have to make separate applications to Acute Community or Mental Health Trusts.

Practices should follow their usual redaction process, excluding details which would identify a third person (unless they are a healthcare professional acting in that role or have consented to disclosure) 3 or represents information that might reasonably be considered to cause serious harm to another person.

If a patient has, prior to death, specifically requested information should not be released; then you can decline disclosure but, in these circumstances you can expect, if a complaint about this decision is made, to have to demonstrate some evidence confirming this point.

There is further information available from PCSE about this process at: - Access to Health Request - Primary Care Support England

Under current guidance, PCSE retain records of deceased patients for ten years; the same approach can be taken for electronic records if the IT system has the ability to do so and leave a remaining stub demonstrating their destruction. There are different timescales in place for hospital maternity and children and young peoples’ records.

I hope this background is helpful given that GP practices will now occasionally start to receive AHR requests; your DPO may be able to assist with further queries; or please contact the LMC.

Dr Julius Parker

Chief Executive

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Updated on Tuesday 6 August 2024

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