Deceased Patient Records: Who Can Access Them and When?

Being someone's spouse, child, relative or next of kin does NOT automatically give them the right to access a deceased patient's medical records.

We often get asked..

✓ Who can legally request deceased patient records

✓ What "intestate" means

✓ When records can be released to family members

✓ How to handle contested will requests

✓ When discretionary disclosure may be appropriate

✓ Common mistakes to avoid 

Probably, one of the most common questions we receive from practices is whether a spouse or family member can be given access to a deceased patient’s records. The key issue is not the relationship itself, but whether there is a lawful route for disclosure and what information is actually needed.

A spouse, child, relative, or next of kin does not automatically gain access. Although UK GDPR no longer applies after death, a duty of confidentiality still remains, so each request must be assessed carefully.

This blog explains the main routes to disclosure, the evidence to ask for, and how to decide what should be shared in practice.

💡 Did You Know?

⚖️ The Legal Position in Plain English

Requests for deceased patient records are generally considered under:

✓ The Access to Health Records Act 1990

✓ The Common Law Duty of Confidentiality

✓ Any relevant court order or legal obligation

Remember: Confidentiality continues after death.

The Three Routes to Disclosure

In practice, most requests can be assessed by identifying the route, checking the evidence, and limiting disclosure to what is justified. 

Route	Who this applies to	Evidence to request	Disclosure approach
Route 1	Personal representative, such as an executor of the will / estate or administrator	Will, Grant of Probate, or Letters of Administration	Confirm authority first, then consider withholding items that breach someone else's confidentiality or that may cause harm
Route 2	Someone with a claim arising from the death	Clear explanation of the claim and authority where acting through a solicitor	Disclose only information relevant, necessary, and proportionate to that claim
Route 3	A person seeking limited information outside the statutory routes	Reason for the request and any supporting context	Consider carefully case by case and usually provide only a summary or limited disclosure where justified

 The sections below explain how to apply each route in practice.

Route 1: Personal Representative

A personal representative is usually:

✔ An Executor

Named within a valid will.

✔ An Administrator

Appointed where there is no will.

If the requester is the executor or administrator of the estate, they generally have a right of access under the Access to Health Records Act 1990. Ask for evidence before progressing the request.

📖 What Does "Intestate" Mean? 

You may hear this term regularly when handling deceased record requests.

Intestate simply means that somebody has died without leaving a valid will.

Where this happens:

❌ There is no executor.

✅ A suitable individual may apply for Letters of Administration.

Once appointed, they become the Administrator of the Estate and can act as the deceased patient's personal representative.

Top Tip: Ask for evidence of authority before deciding whether any disclosure can take place.

Route 2: A Person with a Claim

A person may request records because they have a legal claim relating to the patient's death;

• Clinical negligence

• Estate matters

• Probate disputes

• Contesting a will

• Life insurance

  
  

A claim does not justify automatic access to the full record. Check what the claim relates to and limit disclosure to what is needed for that purpose.

Before disclosing anything, check that the information is:

✓ Relevant

✓ Necessary

✓ Proportionate

🔦 Spotlight Scenario: Contesting a Will

This is one of the most frequent requests we receive.

A solicitor or family member may be challenging a will because they believe the deceased lacked the mental capacity to make it.

In these circumstances, disclosures should focus on information relating to:

• Mental capacity

• Cognitive functioning

• Dementia diagnoses

• Memory concerns

• Mental health assessments

• Relevant consultations around the time the will was prepared or signed

  
  

Key Point

The requester is unlikely to need the entire GP record. Focus on the period and information that relate directly to capacity and the disputed will.

This keeps the disclosure relevant, proportionate, and easier to defend if later challenged.

Route 3: Discretionary Disclosure

Not every request falls neatly under the Access to Health Records Act.

Sometimes a limited disclosure may be appropriate under the Common Law Duty of Confidentiality.

There is no automatic right of access under this route.

Each request must be assessed individually.

When Might Discretionary Disclosure Be Appropriate?

Examples may include:

❤️ Helping relatives understand the circumstances surrounding a death

🧬 Sharing information relating to hereditary or genetic conditions

🏥 Providing information relevant to a family member's own healthcare

👨‍👩‍👧‍👦 Responding to reasonable concerns raised by close family members

In many cases, a carefully prepared summary or explanation may be more appropriate than providing a copy of the full medical record.

Practice Scenarios: Issue, Test, Outcome

Scenario A — No authority in place

Issue: A husband requests his late wife’s records. There is no will and no Letters of Administration.

Key test: Is the requester a personal representative, or can they show another lawful route to access?

Likely outcome: Usually no disclosure at this stage, because authority has not yet been established.

Scenario B — Intestate estate with proof

Issue: A daughter provides Letters of Administration after her parent died intestate. 

Key test: Has the requester provided valid evidence that they are the administrator of the estate?

Likely outcome: Access may be appropriate because the requester can act as the personal representative.

Scenario C — Claim arising from death

Issue: A son is pursuing a clinical negligence claim.

Key test: Has the requester explained the claim clearly enough for you to identify the relevant records?

Likely outcome: Relevant records may be disclosed, but only to the extent needed for the claim.

Scenario D — Will dispute about capacity

Issue: A family member is contesting a will due to concerns about capacity.

Key test: What records are directly relevant to capacity at the time the will was made or signed?

Likely outcome: Disclose information relevant to capacity, not the complete record.

Scenario E — Relative seeking understanding

Issue: A relative wants to understand the circumstances leading to the patient’s death. 

Key test: Would a limited explanation or summary meet the purpose without wider disclosure?

Likely outcome: Consider whether a limited discretionary disclosure or summary is appropriate.

Scenario F — Family health relevance

Issue: A child is concerned about a hereditary condition.

Key test: Is there information that is relevant to the family member’s own healthcare needs?

Likely outcome: Relevant information may be shared where there is a clear justification.

🚩 Top 5 Mistakes We See

1. Assuming a spouse automatically has access

Relationship alone is not enough.

2. Treating "next of kin" as legal authority

Next of kin status does not create a legal right of access.

3. Releasing the entire record

Consider what information is actually relevant.

4. Not requesting Probate or Letters of Administration

Always verify authority.

5. Forgetting about discretionary disclosure

Not every request sits neatly within the Access to Health Records Act.

💡 Need some templates to help you respond to a request? Customers can find this on your myKafico platform!

💡 For customers who use us to process all their disclosure requests, be assured that we follow these rules routinely for all your requests.

Viki Baines, Disclosures Nerd