The Dramas of Sperm Donor Records… to Disclose or not to Disclose?

The rights of a personal representative to disclosure of the deceased’s health records – how far do they go?

(…the answer is pretty far)

In its recent decision Re AB (disclosure of medical records), the High Court confirms the correct approach to requests for disclosure from personal representatives of deceased patients. In this specific case, the records in question were records held by a fertility clinic to whom the deceased had donated sperm shortly before they died.

The ground rules for handling these kind of requests are set out in the Access to Health Records Act 1990 (AHRA 1990) as well as, in the specific cases of sperm, gametes and embryos, the Human Fertilisation and Embryology Act 1990 (HFEA 1990).

The case turned on one central question - how far do the rights of personal representatives to the disclosure of the deceased’s health records go?

The fertility clinic’s argued position was s5 AHRA 1990 imposed the following limitation:

“Access shall not be given…to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient’s death

The High Court held this ‘need to know’ basis limitation did not apply to personal representatives (only individuals who rely on a claim arising out of the patient’s death as the basis for their right to disclosure).

This welcome decision confirms our longstanding view on the matter – a deceased patient’s personal representative has an extensive right to the disclosure of the deceased’s health records. They do not need to rely on a claim arising from the deceased’s death as a basis for any such request for disclosure. The documentation that must be disclosed in response to such a request is not limited to the documentation relevant to such a claim.

Need help dealing with this tricky legal area? Our experienced team of information governance lawyers would be more than happy to help.

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