Right of access to medical records by next of kin

As of 1 January 2020, the Medical Treatment Agreement Act (WGBO) has been amended. One of the changes is the right of access for the next of kin after the death of the client.

It may be that next of kin want to inspect a deceased person's medical file to find out whether the deceased was incapacitated or whether medical errors were made.

As a healthcare provider, it is important to know the rules regarding the right of access.

Main line

The main rule is that each healthcare provider has a duty of professional secrecy with regard to information contained in medical records. This means that the healthcare provider is not allowed to share any information with third parties, unless the client has given explicit permission.

Exceptions

The care provider is allowed to share information with next of kin if the following four exceptions apply:

1. The next of kin is the parent of a deceased child who was not yet 16 at the time of death and the inspection is not contrary to good counsellorship.
2. During his lifetime, the client has given his permission for his next of kin to have access to his medical file. The consent must be in writing or recorded electronically.
3. The surviving relative has received a message about an incident that happened to the client. In an incident, something went wrong in the care and the client suffered damage or could have suffered damage as a result. This incident was not intended or expected.
4. Anyone who has a serious and personal interest and makes it plausible that this interest may be harmed.

I will deal with exception 4 below, since in that case the healthcare provider must weigh up the situation.

Overriding interest

In the fourth exception, 'anyone' can be given access to the medical file. This means that non-neighbours can also ask for this data.

When weighing up the interests, it is not the patient's overriding interest that matters, but the interest of the person requesting the data.

The care provider can only honour the applicant's request if the following matters have been made concrete and plausible:

1. there is a real and substantial interest;
2. this interest is prejudiced by the confidentiality of the file;
3. it is necessary to have access to the medical file in order to be able to pursue the important interest.

Some examples of important interests

• The applicant wants to challenge a legal act (e.g. drawing up a will, donation to a family member);
• The applicant suspects medical malpractice;
• The client's former representative wants to see the file because he has to give evidence in court.

Examples of non-weighted interests

• The applicant indicates that he wants to receive the file for emotional reasons;
• If there are no well-founded indications that the client was incapacitated;
• The applicant may obtain the information necessary for the protection of his interest by other means.

Client has final say

Even if the applicant's compelling interest has been demonstrated and made concrete, access to the medical file may be refused if the client has explicitly stated in writing or electronically that he does not consent to access to the medical file. This means that the client is always the last to decide.

Overview and explanation

The Royal Dutch Society for the Advancement of Medicine (KNMG) has created an infographic and explanation especially for healthcare professionals, so that it is clear in a clear manner when access must be provided and when not.