As a physician, you may occasionally receive a request for a deceased patient’s medical records. There are many reasons why family members or other individuals may want this information, such as when applying for insurance benefits, settling disputes about the validity of a will, or learning more about the patient’s health condition.
The first items to consider in all such requests are whether you are the custodian of the medical records, whether the individual is entitled to the information, and what type of information may be disclosed. Other factors to consider are the intended uses for the information, and whether the medical records contain sensitive information.
An individual states they are the legal representative of the deceased patient (e.g. administrator or executor of the estate). Are they entitled to unfettered access to the patient’s medical record?
A legal representative’s ability to access a deceased patient’s medical record depends on the applicable privacy legislation.
In most provinces and territories, the privacy legislation limits such access to purposes related to the administration of the estate.
In some jurisdictions, the privacy legislation grants the legal representative a broad right of access (e.g. British Columbia, Manitoba and Ontario). Legal representatives in these jurisdictions essentially have the same access as the deceased to information in the medical record, subject to any prescribed exemptions (e.g. risk of harm).
What proof do I need they are the legal representative?
You may request a copy of the patient’s will appointing the individual as the legal representative. If the deceased did not appoint a legal representative, some privacy statutes extend access rights to the patient’s nearest relative or the person assuming responsibility for administration of the estate (e.g. British Columbia, Ontario, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, Northwest Territories and Yukon).
If a copy of the will is not readily available, and there is no reason to believe the estate is contentious, you may simply confirm that the individual requesting the information is the legal representative or person assuming responsibility for administration of the estate. Make a notation to this effect in the medical record. If you are aware of a potential dispute regarding the estate, and the records may prove to be controversial, it would be prudent to obtain the will before releasing the information.
Legal representatives and substitute decision-makers
The legal representative of the deceased patient may be different from the patient’s substitute decision-maker while alive. The legal representative of a deceased patient is generally the person named in the patient’s will as the executor, administrator or estate trustee.
Administration of an estate
What is a “purpose related to the administration of the estate”?
In responding to a request for records, it’s prudent to confirm with the legal representative that the records are needed for administering the estate (in those provinces/territories where this requirement exists). You generally do not need to conduct further inquiries.
Generally speaking, the medical records will be considered relevant to administering the estate if for purposes such as determining whether the estate/beneficiaries should receive benefits under an insurance policy, defending claims against the estate, or preparing an action on behalf of the estate for injuries suffered by the deceased person prior to death.
If the legal representative indicates they only want the information for personal reasons, it would generally not be reasonable to provide the records, unless there is permissive authority in the relevant privacy legislation (discussed below). For example, reasons such as bringing closure to the patient’s death are generally not considered to be related to the administration of the estate.
There is sensitive information in the deceased patient’s records. Can I refuse to provide access to the legal representative?
If the records are required for administering the estate, you are generally only able to withhold information if a prescribed exemption applies. This is true even if the information is sensitive and the patient had indicated while alive that they did not want anyone to have access to certain information.
It is not up to the physician to determine whether the information is relevant for administering the estate. A physician would be vulnerable to a complaint and criticism from their regulatory authority (College) and/or privacy commissioner if they unreasonably deny access to records.
- In these situations, the best you can do is to alert the legal representative that the records contain sensitive information that the patient did not want disclosed.
All Canadian privacy statutes include exceptions that may limit what information a legal representative can access within the deceased’s records.
- You may refuse access to sensitive information if, for example, the access could reasonably be expected to result in a risk of serious harm to another person, or if it enables a person who provided information in confidence to be identified and it is appropriate in the circumstances for their identity to remain confidential.
If an exception applies to some parts of the record, the legal representative may still have a right of access to the other parts of the record that can reasonably be severed from the part of the record to which the exception applies.
Other permissible access
May I share information with family members or other individuals who are not the legal representative, or for purposes other than administrating the estate?
In most jurisdictions, you may be permitted to disclose a deceased’s personal health information for reasons other than administering the estate and to someone other than the legal representative. The information that can be disclosed is typically limited to the circumstances surrounding the death of the individual or health services the patient recently received.
In some jurisdictions, you may also be permitted to disclose patient information to the deceased person’s spouse, common-law partner, sibling or descendant if the recipient reasonably requires the information to make decisions about their own or their child’s healthcare (e.g. Ontario, New Brunswick, Nova Scotia, Newfoundland and Labrador and Prince Edward Island).
Because these provisions are permissible, you are not required to disclose the information. Accordingly, if the patient had expressed a prior wish not to share personal health information with anyone, avoid disclosing the information unless the requesting individual is the legal representative of the deceased patient.
Responding to coroners and medical examiners
Legislation may allow a coroner to access medical records, while physicians should consider their duty of confidentiality to a deceased patient. Read the CMPA article “Understanding the role of coroners and medical examiners”, on how to respond to a coroner (or delegate) who is seeking medical information about a deceased patient.
Guidance for physicians in Québec
The Collège des médecins du Québec provides guidance for physicians practising in Québec when responding to requests for deceased patients’ medical records. See “L’accès au dossier médical d’un patient décédé [PDF]” (available in French only).
The bottom line
If you receive a request for a deceased patient’s medical records:
- Ask yourself whether you are the custodian of the medical records, as only the custodian may disclose them.
- Determine whether the individual has authority to access the records, either because they are the legal representative or there is another permissive authority under the relevant privacy legislation.
- Where applicable, confirm with the legal representative that the records are required for administering the estate.
- Assess whether any information should be excluded based on an exception under the relevant privacy legislation.
- You may contact the CMPA if you are uncertain whether to release the requested records.