It is common knowledge that a patient’s medical information is kept confidential under Quebec’s laws on professional secrecy. These rights ensure that only the patient, their physician or another authorized medical professional can access the patient’s medical records.
But what happens when the patient dies? Does their family have an automatic right to access their medical file? And how do they access it?
In this article, we will explain who has access to a deceased patient’s medical records and how to go about securing this access.
Who can access a deceased person’s medical records?
The right to professional secrecy heavily protects the contents of medical records of deceased patients 14 years or older. The provisions that govern this access are stipulated primarily in the Act respecting health services and social services, the Act respecting the protection of professional information in the private sector and the Code of ethics of physicians.
However, a third party may have the right to access the medical records if their request conforms to the Act’s requirements. The deceased patient’s heirs and family members may be entitled to access the records under certain conditions. It is always advisable to enlist a law firm that specializes in health law to help you compile and verify all of the information needed to apply for this access.
Below, we explain what criteria you need to meet when requesting access to medical records.
Proving you are an heir or legatee by particular title
An individual’s right to privacy is protected even after death. Anyone claiming to be an heir or a “legatee by particular title” must therefore adequately substantiate this claim.
To determine whether someone is an heir, you must contact the Chambre des notaires du Québec and the Barreau du Québec to verify if there is a will. If there isn’t a will, the heirs are determined according to the conditions of the Civil Code of Quebec. If the applicant is unable to provide proof of heirship, the application will be denied.
Asserting a valid right to access a deceased person’s medical records
To request a copy of a deceased person’s medical records, it is not enough to simply establish yourself as an heir. You must also have a valid and legally recognized reason to access their records.
There are certain very specific rights under which you may access information in the deceased’s medical records, including:
- To know a relative’s cause of death: Typically, a deceased patient’s close family members (parents, children) have the right to obtain information regarding the cause of death if they prove their relationship to the deceased. However, before passing away, the patient can refuse to have their cause of death disclosed. In which case, the family has no choice but to respect this decision.
- To find out if the deceased had a genetic disease or was a carrier of a genetic disease: A deceased person’s blood relatives may request access to their medical records to verify the existence of a genetic disease. In this particular case, the patient’s prior refusal to share medical information is not disregarded.
- To pursue a medical liability claim: If the deceased patient’s heir believes they were the victim of negligence or medical error (e.g. a misdiagnosis), the heir can request access to the relevant medical records. This information could be used to support a medical liability claim or to file a complaint with the medical facility.
Therefore, any request to access information in a deceased person’s medical record must be justified by one of the above reasons. In the event that access is granted, only information that is directly related to the asserted right will be communicated.
If the deceased person is younger than 14
The rules are different if a minor under the age of 14 dies. In this situation, the parent or guardian may obtain a copy of the deceased child’s or teen’s complete medical record.
MedLégal: defending your health care rights
While denying access to a deceased person’s medical record is the default rule, there are certain situations where access may be granted. The applicant must meet the above criteria and, if they are requesting access because they suspect that the deceased was the victim of a medical error, the applicant must be able to prove both their status as heir and the legal justification for their request. If you need help obtaining access to your deceased loved one’s medical records, contact MedLégal. Our Quebec health lawyers will provide you with expert legal assistance to help you understand and exercise your rights.