The Order allows access to:
- the deceased’s personal representatives (both executors or administrators) to enable them to carry out their duties
- anyone who has a claim resulting from the death
However, this is not a general right of access, it is a restricted right and the following circumstances could limit the applicant’s access:
- if there is evidence that the deceased did not wish for any or part of their information to be disclosed
- if disclosure of the information would cause serious harm to the physical or mental health of any person
- if disclosure would identify a third party (that is, not the patient nor a healthcare professional) who has not consented to that disclosure
As with the Data Protection Act, a medical professional may be required to screen the notes before release.
Under the Order, if the record was made during the 40 days preceding the access request, access must be given within 21 days of the request.
Where the record concerns information which was recorded more than 40 days before the application, access must be given within 40 days, however, as with the Data Protection Act 1998, organisations should endeavour to supply the information within 21 days.
No fee may be charged for providing access to the information if the records have been made, amended or added to in the 40 days before the application is made.
The fee which may be charged where all the records were made more than 40 days before the application is made is that prescribed under section 7 of the Data Protection Act 1998 - the maximum fee which can generally be charged under this provision is currently £10 (see the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000).
Where a copy is supplied, a fee not exceeding the cost of making the copy may be charged.
The copy charges should be reasonable, as the doctor or organisation may have to justify them. If applicable, the cost of posting the records may also be charged.
Records management considerations
Organisations should have processes that address where and how the records of deceased persons are stored.
Secure and environmentally safe storage is vital to ensure that records are maintained in good order and are available if required.
It is essential that organisations put in place processes and procedures to enable the efficient and effective retrieval of such records within the timescales specified by the Data Protection Act.
This applies to records in all formats.