Access to the health records of deceased patients: Why the law is in need of review

A glance at the cases that came before the UK Information Commissioner's Office (ICO) in the period between 2005 and 2008 immediately shows that a consistently high number relate to access to the health records of deceased patients. What accounts for this interesting state of affairs? This paper aims to demonstrate that the law regulating this increasingly important area is a patchwork of case law, statutes and professional guidelines that do not always lend themselves to a congruous and seamless amalgamation. This has in turn resulted in the need for creative interpretation and at times legal gymnastics on the part of the ICO and medical professionals. We argue that in an age where allegations of medical negligence are proliferating (and access to the health records of the deceased could help confirm or dispel suspicions of wrongdoings leading to the death) and where genetic information about a deceased relative could offer valuable support to a living patient's preventative care, diagnosis and treatment plans, the law regulating access to the health records of deceased patients in the UK can no longer afford to be unclear and confusing. There is, therefore, an urgent need for review.