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What to do when the hospital refuses

Most refusals are not the end of the road. They are usually wrong in law, and there is a clear route to a court order.

What is this?

This guide is for when you have made a proper request for a deceased relative's records under the Access to Health Records Act 1990 and the holder has refused, delayed, or set conditions the law does not impose. It explains why those refusals usually fail, and the steps that lead, if necessary, to an order from the Sheriff Court compelling disclosure.

Common refusal tactics

• Demanding executor status. You are told you must be the executor or hold confirmation of the estate before they will release anything.
• Demanding a solicitor's letter. You are told the request must come from, or be backed by, a solicitor.
• Ignoring the request. The 40 days pass with no substantive response, or you are passed endlessly between departments.
• Claiming the criteria are not met. You are told, without explanation, that you do not qualify.

Why these refusals are usually wrong

Section 3(1)(f) of the AHRA allows an application from the personal representative and any person who may have a claim arising out of the patient's death. These are two separate categories joined by "and". A person with a possible claim does not have to be the executor.

Put the relevant test to them in writing and ask them to identify the specific statutory provision they rely on to refuse. Often there is none.

The steps to secure compliance

In Scotland, the route to enforcement runs through the Access to Health Records (Steps to Secure Compliance and Complaints Procedures) (Scotland) Regulations 1991. The idea is that you give the holder a proper chance to comply through its complaints process before you go to court. The steps are:

1. Make your AHRA application. Make a valid request under section 3 of the Act, as set out in the medical records guide. Keep proof of when it was received.
2. When refused, make a formal complaint. When the holder fails to comply, submit a formal complaint, under the 1991 Regulations, that it has failed to comply with its obligations under the Act. Be explicit that this is a complaint about non-compliance, not a general grievance, and keep the date you sent it.
3. Reach the threshold to go to court. The court cannot consider a section 8 application until you have been through this complaints step (section 8(2) of the Act). The threshold is met once the holder sends you its report under the regulations and you remain dissatisfied, or, if it does not respond, once three months have passed from the date of your complaint. You do not have to wait the full three months if the report comes sooner.
4. Apply to the Sheriff Court. Apply under section 8 of the AHRA for an order requiring the holder to give you access. Section 8 allows the court to order compliance where a holder has failed to meet its duties under the Act.

Applying to the Sheriff Court as a party litigant

You can bring a section 8 application yourself, as a party litigant, without a solicitor. It is made by summary application to the sheriff court for the area.

• A court fee is payable to lodge a summary application. The amount is set by the Scottish Courts and changes from year to year, so check the current figure on the Scottish Courts website before you lodge. If you are on a low income or certain benefits you may be exempt from the fee, so ask about fee exemption.
• You lodge the application with the sheriff clerk, who will help with the mechanics of the process, though they cannot give legal advice.
• The Scottish Courts website publishes guidance for party litigants. See the free and low-cost help guide for where to find it and for free advice services.

What it costs

SHERIFFDOM OF [sheriffdom]
AT [sheriff court town]

SUMMARY APPLICATION
under section 8 of the Access to Health Records Act 1990

by

[Your full name], [your address]
                                                        APPLICANT

against

[Name of NHS board], [registered/principal office address],
being the holder of the health records
                                                        RESPONDENT

The applicant craves the court:

1. To find that the respondent is the holder of the health records of
   the late [name of deceased], who died on [date] (the deceased).

2. To find that the applicant is a person entitled to apply for access
   to those records under section 3(1)(f) of the Access to Health
   Records Act 1990, being a person who may have a claim arising out
   of the death of the deceased.

3. To ordain the respondent to give the applicant access to, and a copy
   of, the health records of the deceased held by the respondent, in
   terms of section 8 of the Act.

4. To find the respondent liable in the expenses of this application.

5. To do further or otherwise as to the court seems just.

STATEMENT OF FACTS

1. The deceased, [name], died on [date] at [the hospital], which is
   operated by the respondent.

2. The applicant is the [relationship] of the deceased and is a person
   who may have a claim arising out of the death.

3. By letter dated [date], received by the respondent on [date], the
   applicant applied under section 3(1)(f) of the Act for access to the
   deceased's health records. A copy is produced.

4. The respondent has failed to give access [/refused access on the
   ground that ...]. The applicant avers that any such ground is not a
   lawful basis for refusing a valid application under the Act.

5. By letter dated [date] the applicant made a formal complaint that the
   respondent had failed to comply with its obligations under the Act,
   in accordance with the Access to Health Records (Steps to Secure
   Compliance and Complaints Procedures) (Scotland) Regulations 1991.
   More than three months have passed [/the applicant received a report
   dated [date] and remains dissatisfied].

6. The respondent remains in breach of its duty under the Act. The
   applicant is entitled to an order under section 8.

PLEA-IN-LAW

The respondent being the holder of the records, and having failed to
comply with its duty under the Access to Health Records Act 1990 to give
the applicant access, an order under section 8 of the Act should be
granted as craved.

IN RESPECT WHEREOF

[Signature]
[Your name], Applicant (party litigant)
[Date]