Access to medical records of deceased person

Forbes v Tang [2018] NSWDC 320 is a useful decision for its consideration of a pre-trial discovery application for access to the medical records of a deceased person.

The defendant had declined a request for copy records by the claimant (widower of the deceased) on the basis that there was no applicable provision in the Health Records And Information Privacy Act 2002 (NSW) allowing disclosure of the record by the medical practitioner.

The deceased died intestate and did not have sufficient assets to warrant an application for letters of administration.

The court said at [22]:

… I am satisfied that Mr Forbes may be able to bring a claim for damages arising from the death of the deceased founded upon the circumstances surrounding the administering of medication, and in particular, endone, to the deceased by Dr Tang and his clinical care generally. I am satisfied that any action is more than a mere possibility by reason of the potential of there being a breach of duty of care owed to the deceased. While the particulars of breach remain unclear and the nature of the cause of action will depend upon the results of analysis of the documents produced, I am satisfied that the production of those documents is essential to the bringing of any claim under the Civil Liability Act 2002(NSW) or other legislation, and that there is no other provision by which Mr Forbes can obtain these documents.