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High court orders fertility clinic to release deceased man's records

27 April 2020
Appeared in BioNews 1044

A fertility clinic has been ordered to disclose records pertaining to the use of a dead patient's sperm to the personal representative of the patient's estate.

The case (reported previously in BioNews 1036) was heard by Sir Andrew McFarlane, President of the family division of the High Court, who said in his judgment:

'It is lawful for the Respondent to provide the Applicant with a copy of all records relating to the arrangements for the storage and use of the Deceased's sperm and/or embryos created using his sperm, such records having been redacted to remove any information relating to or provided by an individual, other than the Deceased, who could be identified by that information.'

Furthermore, he ordered the clinic to disclose this information to the patient's representative. 

The personal representative – in this case the patient's brother – made the application under the Access to Health Records Act 1990 (AHRA), requesting the clinic to provide him with information regarding the storage and use of his brother's sperm and any embryos created using his sperm. 

In refusing the request, the clinic claimed that it was bound to maintain its duty of confidentiality unless it had a clear duty to disclose such information. 

Section 3(1)(f) of the AHRA states that a 'patient's personal representative and any person who may have a claim arising out of the patient's death' can apply for access to a deceased patient's medical records.

The dispute focused on the interpretation of Section 5(4) of the AHRA, which prohibits the release of information which is 'not relevant to any claim which may arise out of the patient's death.' The clinic claimed that this effectively prevented it from releasing the information.

Jenni Richards QC, representing the brother, argued that Section 3(1)(f) provides two distinct categories of parties who are entitled to access a deceased person's records: their personal representatives, and those who may have a claim arising out of the patient's death. As such, as a personal representative, the brother was entitled to the records as a standalone right, and it did not matter that information within the records did not relate to a claim.  

The Department of Health and Social Care, which provided written submissions to the court, supported the brother's application. It cited its 2010 guidance, which states 'The personal representative is the only person who has an unqualified right of access to a deceased patient's record and need give no reason for applying for access to a record.' 

The judge ruled in favour of the applicant and ordered the clinic to provide him with the records which he had requested. The records are to be provided in a redacted format, to avoid disclosing the details of any third party. 

The case creates a precedent which should clarify the position for other fertility clinics handling requests for similar information following the death of patients.

England and Wales High Court (Family Division) decisions
BAILII |  23 March 2020
Fertility clinic must release records of dead man’s sperm to his brother, judge rules
The British Medical Journal |  26 March 2020
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