The question: I live in Ontario and my father recently died of cancer. I was his medical advocate and I’m now the executor of his will. I feel my father’s treatment was compromised because of poor communications between the medical staff involved in his care. I would like to obtain my dad’s medical records. How do get access to them?
The answer: The information contained in the medical records belongs to the patient. When the patient dies, the person who is responsible for administering the estate – such as the executor – becomes the “substitute decision maker.”
That means, as the executor of your father’s will, you have the legal authority to access his medical documents.
But keep in mind that the physical records are the property of the doctors or hospitals that created them – and they have a legal responsibility to maintain them for a certain period of time. You won’t get the originals. Instead, you will be given copies and charged an administrative fee.
The amount of this fee has been an occasional source of controversy. A few years ago, a patient in Ontario was asked to pay over $2,500 and complained to Dr. Ann Cavoukian, the province’s Information and Privacy Commissioner. In response, Dr. Cavoukian, set a guideline of $30 for the first 20 pages, plus 25 cents for each additional page. (Many other provinces, or the local medical regulatory bodies, have created similar rules to keep fees in a reasonable range.)
Based on your question, it sounds like you have some concerns about your father’s medical treatment. However, there are many reasons why the medical records of a deceased person can be of great interest to the living relatives. The factors that contributed to the death could have a bearing on their own health – think genetics. And the records may be needed for dealing with legal and financial issues related to the estate.
“One example of this might be when the spouse of a deceased individual requires confirmation of death in order to be entitled to the individual’s pension or insurance benefits,” Dr. Cavoukian said in an email.
So, it’s fairly common for people to seek the medical records of a deceased next of kin, says Sarina Cheng, director of the Health Records Department & eHealth Strategies at Sunnybrook Health Science Centre.
To obtain your father’s records, you will need to contact the health records department of the hospital where he was treated. For a complete picture, you will likely have to contact the offices of the physicians who cared for him outside the hospital.
You will have to show documents that prove you have the authority to act on behalf of your father, says Ms. Cheng. I don’t expect you will run into any problems. But what happens when someone dies without a will – which is a frequent occurrence.
The law in Ontario does allow for some flexibility in these situations. Very close kin – the spouse, partner, sibling or child – can get the records without being the dead person’s legally-designated substitute decision maker. However, the law also states that the release of the documents is “discretionary, not mandatory” on the part of those who hold them.
If the relatives are denied access, they can appeal to the Information and Privacy Commissioner of Ontario.
The privacy office has produced an online fact sheet with frequently asked questions about obtaining the medical records of deceased relative.
Some may find parts of the fact sheet are written in an overly legalistic fashion and lack clarity. But it does include links to the request forms – and that makes it a useful resource.
Paul Taylor is Sunnybrook’s Patient Navigation Advisor. His column Personal Health Navigator provides advice and answers questions from patients and their families, relying heavily on medical and health experts. His blog is reprinted on healthydebate.ca with the kind permission of Sunnybrook Health Sciences Centre. Email your questions to AskPaul@sunnybrook.ca