It is not uncommon to receive a request for the health information of a deceased patient. These requests can come from official agencies, such as the ACC or the Coroner, or from the relatives of the patient who has died. It is important to note that the right to privacy extends beyond the death of an individual and, as such, these requests must be treated with care.
Under the Health Information Privacy Code (HIPC) rule 11, it is laid out that a health agency may disclose information to a deceased individual's representative who can authorise disclosure to others. The question then is: who is the individual's representative after they die?
Practitioners often make the mistake that the patient's 'next of kin' should be considered their legal representative. The 'next of kin' has no specific legal standing and therefore has no specific right to access their private information, either before or after their death. It is also important to note that an Enduring Power of Attorney (EPOA) ceases to have effect as soon as the person involved (donor) has died; hence the person who held the EPOA has no specific right to access the donor's health information after their death. Similarly, welfare guardians cease to have any legal rights upon the death of the individual.
“Representative” is defined in the Health Act 1956 and the HIPC to mean, in part, “where the individual is dead, that individual's 'personal representative'”. A “personal representative” is defined in the Trustee Act 1956 as “the executor or administrator of the deceased estate”. Therefore, after an individual's death, the person who can consent to the release of their health information is their executor or the administrator of their estate.
If a person has made a will, then the executor will be named in that document. If there is no will, a close relative can apply to the High Court to be appointed as the administrator of the estate and, if this is granted, they will then be considered to be the deceased person's representative. If the value of the estate is low (no individual asset is worth more than $15,000), then there may be no court-appointed administrator and, in this case, there may be no “representative” who can consent to the release of the deceased's health information.
Requests for information where there is no legal representative
Where there is no legal representative of a deceased person, the health practitioner may need to take a pragmatic approach to the request. Releasing the deceased's health information, even in the absence of consent from the deceased's representative, may allow grieving families and close friends to better understand what has happened, and to come to terms with the death. It may also facilitate screening for inheritable conditions.
In such situations, it is necessary to find out what information has been requested and the reasons for this, exploring whether the release of a lesser amount of information would satisfy the requestor's needs.
Consider who was close to the deceased – this may be the person's 'next of kin' or it may be some other individual that the health practitioner considers to have held a particular role of trust with the patient. For example, in the case of a young adult, this may be the deceased person's parents, or it may be their partner or a very close friend/carer. Seek out the views of such individuals on releasing the deceased's health information and assess the likelihood of someone complaining about the release (although in law it is generally settled that only the individual or their representative can complain about a breach of privacy).
Deciding who could reasonably be considered to be a deceased person's representative, when there is no-one with legal standing, can be difficult. In this situation, it is advisable to seek the help of Medical Protection before acting.
Even when the legal representative consents to release of the deceased's health information, it is important to consider whether there is any information that the deceased didn't want, or you feel wouldn't have wanted, disclosed. In such cases the health professional may choose not to disclose certain information, advising the requestor that certain information has been withheld and the reasons (in general terms) for this.
It is very important to be sensitive to any requests for health information of a deceased patient. Often a family member may believe they have a right to the information and may feel rejected and obstructed when their request is declined.
In some situations, the reason a relative is asking for the information is because they wish to make a complaint about the care the deceased person received, prior to their death. It is important to consider this possibility, and if you think a complaint is likely, or if you think that the patient's representative requires further explanation or clarification regarding what is in the clinical record, it may be a good idea to offer a meeting, or to go through the notes with them, so that you can answer any questions that arise. In this situation, it is advisable to contact Medical Protection for advice, prior to making any such offer.
Requests from authorities
The Coroner has the right to ask for information regarding a deceased person and often does so by requesting a report from health professionals involved. The Coroner can request this information, and no consent is required from the deceased person's representative. Providing accurate and relevant information in these reports is crucial and Medical Protection can assist members in writing them as, for most members, this will be an unfamiliar task. Similarly, the Health and Disability Commissioner can ask for clinical information and no consent is required in this case.
Police often ask for information after a person has died – this is a specific case where, in some circumstances, it may be appropriate to release information without the consent of the patient's representative. The police can provide an agency with a Production Order, which requires the agency to release the information. Still, in the absence of this, we would advise that you contact Medical Protection before releasing any information without consent from the patient's representative.
- The ‘next of kin’ has no specific legal standing and you cannot assume they have the right to access a deceased person’s medical records.
- The person who is allowed to access a deceased person’s notes is the executor or administrator of that person’s estate.
- If there is no administrator or executor, you can weigh up who could best be considered the representative of the deceased and make a judgement based on your knowledge of the deceased person’s relationships.
- If you think a relative is requesting a deceased person’s health information because they are unhappy with the care that was provided, then having considered the release under the advice above, it may also be useful to engage with the relative to clarify their concerns and address them appropriately.
- If they are reviewing the circumstances of a death, the Coroner has the right to access the deceased person’s health information, as does the Health and Disability Commissioner, if they are looking into a complaint. Neither of these agencies require the consent of the deceased person’s representative to access the relevant health information.