AB, Re

Under Access to Health Records Act 1990, a deceased patient’s personal representative and a person who may have a claim arising from the death are distinct categories of applicant. The claim requirement applies only to the latter category. Section 5(4) limits disclosure to records relevant to a claim, but does not qualify a personal representative’s right of access under section 3(1)(f). A disclosure permitted under section 3 of that Act is also excluded from the general prohibition in section 33A(1) of the Human Fertilisation and Embryology Act 1990 by section 33A(2)(r). Third-party information must be redacted.

AB, the personal representative of his deceased brother, applied against a fertility clinic for access to records concerning the storage and use of the deceased’s sperm and any embryos created using it. The application was issued under Part 18 of the Family Procedure Rules 2010, but the court held that these were civil rather than family proceedings. The central issue was whether section 5(4) of the Access to Health Records Act 1990 restricted a personal representative’s access under section 3(1)(f) to information relevant to a claim arising from the patient’s death.

1. The application succeeded. The court declared that the clinic could lawfully disclose the requested records and ordered it to do so, subject to redaction of information relating to or provided by identifiable third parties.
2. The proceedings were civil proceedings because an application under section 8 of the Access to Health Records Act 1990 was not family business under the relevant statutory scheme. Nevertheless, every High Court judge has equal jurisdiction, and the application could properly be heard in the Family Division. The erroneous use of Part 18 did not deprive the court of jurisdiction.
3. Section 3(1)(f) creates two disjunctive categories: the patient’s personal representative, and any person who may have a claim arising from the patient’s death. The words concerning a claim attach only to the second category. Requiring a personal representative also to establish a claim would make the separate reference to a personal representative otiose.
4. Section 5(4) is a proviso qualifying the right conferred by section 3. It imposes a proportionate, need-to-know limitation on a person seeking to make a claim, but does not limit the personal representative’s entitlement under section 3(1)(f). No ambiguity or resort to the mischief rule was required. The reasoning supported by Spillers Ltd v Cardiff (Borough) Assessment Committee, [1931] 2 KB 21, Thompson v Dibdin, [1912] AC 533, and Re Memco Engineering Ltd, [1986] Ch 86, was accepted.
5. The clinic’s regulatory prohibition under section 33A(1) of the Human Fertilisation and Embryology Act 1990 was disapplied by section 33A(2)(r), because the application was made under section 3 of the 1990 Act. Section 33A(5) was irrelevant.