20 Oct 2002, 09:00

A man sought access to the medical notes of his deceased wife. He authorised his daughter to act on his behalf. The doctor did not make the notes available and the man complained to me. After investigating the complaint, I formed the opinion that the husband was not entitled to access his wife’s medical notes. 

I investigated the complaint as a possible breach of section 22F of the Health Act 1956. I am authorised to receive complaints of breach of section 22F as if they were complaints under the Privacy Act. Section 22F provides in part that: 

(1) Every person who holds health information of any kind shall, at the request of the individual about whom the information is held, or a representative of that individual … disclose that information to that individual or, as the case requires, to that representative...

I looked first at whether the husband was a ‘representative’ as defined by section 22B of the Health Act:

'Representative' in relation to an individual means -

a.  Where the individual is dead, that individual's personal representative. 

A ‘personal representative’ in this sense means either an executor of the will or, if there is no will, an administrator of the estate. The wife had not left a will and letters of administration had not been applied for, because all assets were jointly owned. It was clear that the husband was not able to satisfy the requirements of a ‘personal representative’. I formed the opinion that the husband was not entitled to access his wife’s medical notes, and that the doctor had a proper basis for refusing to disclose the information under section 22F(2)(b) of the Health Act. 

It might have been possible for an application to be made for letters of administration but the husband chose not to do this. Even if the husband had been the deceased wife’s personal representative or had been able to obtain letters of administration, I formed the opinion that the doctor had a proper basis for withholding the information under section 22F(2)(c), which allows for refusal where that is authorised by a code of practice issued under the Privacy Act. 

Rule 11(4)(b)(ii) of the Health Information Privacy Code 1994 provides that, where a representative of an individual requests access to that person’s health information, an agency may refuse to disclose the information if it has reasonable grounds for believing the individual does not or would not wish the information to be disclosed.  

The doctor advised me that he had received a request for access to the woman’s medical notes during her lifetime. He told the daughter, who made the request, that he would only give access if her mother gave permission. No permission was ever received. The doctor considered that this provided him with reasonable grounds to believe the deceased woman would not wish him to give her family access to her medical notes after her death. I agreed. 

For these reasons I exercised my discretion under section 71 of the Privacy Act to take no further action on the complaint.

October 2002

Access to personal information - Medical practitioner - request by husband of deceased - "personal representative" - refusal - Health Act 1956, ss 22B and 22F - Health Information Privacy Code 1994, rule 11(4)(b)(ii)