Whilst the UK General Data Protection Regulation (GDPR) provides a living individual with the right to obtain a copy of their own personal information (this is called a ‘subject access request’), this legislation and right of access does not apply to the records of a deceased person. Due to a duty of confidentiality that remains after a person’s death, a Next of Kin does not have an automatic right to access the health records of a deceased relative or friend. Such access can only be provided in limited circumstances.
The law in relation to access to a deceased person’s medical or health records is the Access to Health Records (Northern Ireland) Order 1993; however Article 5(1)(e) of the Order provides that an application for a deceased person’s health records may only be made by either :
• the legally appointed personal representative of the deceased (i.e. an executor or administrator of a Will to enable them to carry out their duties); or
• any individual who has a claim arising out of the death (for example, a claim against the estate of the deceased).
In all cases, legal proof of entitlement is required before a request for a deceased person’s healthcare records can be processed under the legislation.
The AHR Order does not recognise Next of Kin on its own, as a personal representative with the right to access a late relative’s health records; and, in Northern Ireland, Power of Attorney does not apply to health care decisions and ceases to apply on the death of an individual so cannot be used as proof of entitlement.
It is also important to note that under Article 7(4) of the Order, there is no automatic right of full unrestricted access to a deceased person’s healthcare records and only information relevant to the claim arising out ofthe death will be considered for disclosure
Applications under the AHR Order must therefore be accompanied by the documentation listed at
Section C along with specific details of the records required and how these are relevant to your request.
Access to a deceased person’s confidential healthcare records cannot be provided to anyone without the valid legal authority to do so. Where legal documents are not available as evidence of legal authority but the family of the deceased have a query or concern about their relative’s care or treatment, they should contact the health professionals involved in the first instance. While there is no legal entitlement other than the limited circumstances covered under the Access to Health Records legislation (as specified above), health professionals have always had discretion to disclose relevant information directly to a deceased person’s relatives or others when there is a clear justification.
For valid requests and following receipt of all required documentation, the AHR Order allows up to 40 days to respond to a request. Relevant records will be reviewed by a health professional(s) before their release.
Further information can be found here https://www.health-ni.gov.uk/articles/access-health-records-northern-ireland-order-1993