Accessing medical records after relative’s death

Yes, you can get access to the medical records of a deceased relative, but the rules on who can access them and on what basis depend on the circumstances.

The key legal framework is as follows:

Access under the Access to Health Records Act 1990

This is the main route. The Data Protection Act 2018 and UK GDPR do not apply to deceased persons, so instead the Access to Health Records Act 1990 governs access to health records of the dead. Under this Act, a personal representative of the deceased (the executor named in the will, or the administrator appointed by the court) has a right to apply for access to the records. In addition, any person who may have a claim arising out of the patient's death can also apply for access, though in that case disclosure may be limited to records relevant to that claim.

The application is made to the holder of the records, which will usually be the NHS trust, GP practice, or private healthcare provider that treated the deceased.

There are a few important points to be aware of:

The record holder must respond within 21 days if the records were made in the 40 days before the application, or within 40 days in other cases.

The record holder can refuse access if the deceased indicated during their lifetime that they did not want the records disclosed, or if disclosure would cause serious harm to another person, or if it would reveal information about a third party who has not consented (unless that third party is a health professional involved in the care).

A fee may be charged for providing copies.

Practical steps

First, establish your standing. If you are the executor or administrator of the estate, gather the grant of probate or letters of administration. If you do not yet have a grant, you may still be able to make the application as a person who may have a claim arising from the death, but you would need to explain the basis of that potential claim.

Write a clear, formal letter to the records holder identifying the deceased, providing the date of death, explaining your relationship and your legal basis for access (personal representative or potential claimant), and specifying as clearly as you can what records you are seeking. Enclose a copy of the death certificate and proof of your identity and your authority (such as the grant of probate or the will naming you as executor).

If you believe the death may have resulted from negligent treatment, access to the records is an essential first step before instructing a clinical negligence solicitor. Many clinical negligence solicitors will obtain the records on your behalf as part of their initial investigation, and many operate on a no win no fee basis, so it may be worth approaching a solicitor early.

Other relevant routes

If you have concerns about the care that led to the death, you may also wish to consider making a formal complaint to the NHS trust or provider under the NHS complaints procedure. You have 12 months from the date of the incident or from when you became aware of the issue in which to complain, though this can sometimes be extended. You can also raise concerns with the Parliamentary and Health Service Ombudsman if the complaint is not resolved satisfactorily, or with the relevant professional regulator such as the General Medical Council or Nursing and Midwifery Council.

If there was a coroner's inquest, you may be able to obtain certain documents from the coroner's office, including witness statements and post-mortem reports, as an interested person under the Coroners and Justice Act 2009.

If you can tell me more about the circumstances, such as your relationship to the deceased, whether there is a will or grant of probate, the nature of your concerns about the treatment, and how long ago the death occurred, I can give you more targeted guidance.