Accessing a Deceased’s Medical Records – Clarifying Rights for Non-Executors
12th June, 2025
We are increasingly encountering situations where requests for the medical records of a deceased person are declined by GP practices where the requestor is not named as an executor in the will.
This can be frustrating where the person requesting the records is seeking information for legitimate purposes, such as concerns that the deceased did not have mental capacity at the time the will was executed.
The recent decision (19 May 2025) in Tubb v Rosmellyn Surgery [2025] EWCC 23 is an interesting judgment looking at this often misunderstood area of law.
The Legal Framework: Access to Health Records Act 1990
Under the Access to Health Records Act 1990 (AHRA 1990), a deceased person’s medical records may be accessed by:
- Personal representatives (i.e. executors or administrators), and
- Individuals who may have a claim arising out of the patient’s death.
Despite the above statutory framework, there remains a degree of uncertainty and understandable caution in how GP surgeries interpret and apply the provisions in practice, sometimes refusing to disclose medical records unless probate has been granted and the applicant is the confirmed executor.
As District Judge Field notes in the Judgment in the Tubb case, the issue of whether a party is entitled to a deceased’s medical records is,
“an issue of considerable importance, both to parties involved in contentious probate disputes where the question of testamentary capacity may often turn to a significant extent on medical evidence, and also to medical practitioners who are rightly concerned to ensure patient confidentiality is properly protected”.
The Case: Tubb v Rosmellyn Surgery
In this case, two daughters of the deceased sought access to their late mother’s medical records from Rosmellyn Surgery under the AHRA 1990 to investigate whether their mother had the mental capacity to make the will in question and whether she may have been subjected to undue influence. Although neither of the daughters were executors, they argued they were entitled under the AHRA 1990 to a copy of the records, as someone who may have a claim arising out of the death, in this case a challenge to the validity of their mother’s will.
Rosmellyn Surgery initially refused disclosure on the basis that the daughters were not the named executors, and as such had no standing to access the records.
The deceased’s daughters brought court proceedings for disclosure and the court found in their favour, confirming that:
- The right of access under AHRA 1990 is not limited to executors or administrators.
- A person who intends to investigate a potential claim (including a will validity challenge) does not need to prove a fully formed cause of action before requesting records.
- GP practices and other healthcare providers should not impose additional requirements beyond those in the statute.
Practical Implications
At Ward Hadaway, we frequently assist individuals seeking medical records following a death, particularly where they are not the named executor or where probate has yet to be granted. In many cases there is confusion or concern about eligibility under the Access to Health Records Act, both for applicants and record holders.
The Tubb case provides a helpful analysis on how the law should be applied and may assist in streamlining such requests going forward. It underscores the importance of such access in situations where there are legitimate concerns about the circumstances under which a will was made, particularly regarding the mental capacity of the testator and potential undue influence.
Further, the case highlights the ACTAPS Guidance for the Resolution of Probate and Trust Disputes which provides that unless there is a good reason not to do so, the parties to a probate dispute should submit a joint request for medical records. Had that happened, the litigation may have been avoided.
If you are experiencing difficulties obtaining medical records following a death, particularly where you are not the executor, our specialist contested probate team can advise on your rights and how best to proceed.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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