The case Re AB: We have had cases previously concerning the use of eggs or sperm donated to a fertility clinic after the death of the donor – see, for example, this case back in 2015. However, I don’t recall previously coming across a case concerning the release of records of a deceased donor by the clinic.
Until now. The issue has recently been considered by the President of the Family Division Sir Andrew McFarlane in the High Court, in the case Re AB.
Request for records
The situation in the case Re AB is that, some five or more years prior to his death, a man provided a sperm sample to a fertility clinic. The sample was frozen and stored. Following his death, his brother, as his personal representative (i.e. the administrator of his estate), requested the fertility clinic to provide him with a copy of all records relating to the arrangements for the storage and use of his sperm and/or any embryos created using his sperm. The clinic, conscious of the need to maintain confidentiality unless there is a clear duty of disclosure, declined that request.
The brother, therefore, applied to the court for a declaration as to the lawfulness of the request, and an order requiring the clinic to disclose the relevant records.
Access to health records
The primary basis for the brother’s application was the Access to Health Records Act 1990, section 3(1)(f) of which states that, where the patient has died, an application for access to a health record may be made to the holder of the record by the patient’s personal representative, and any person who may have a claim arising out of the patient’s death.
In the alternative, the brother sought an order under the court’s inherent jurisdiction that the clinic should disclose information to him, on the basis that (a) the disclosure was sought for the purpose of ensuring that the deceased’s sperm was stored, used and disposed of in accordance with such consent as he provided; and (b) now that the deceased had passed away, his personal representative was the only person who can act in his interests to ensure that the clinic stores, uses and disposes of the sperm in accordance with such consent as he may have provided.
The clinic adopted an essentially neutral position on the application.
A matter of interpretation
As the President explained, the case Re AB turned upon the interpretation of section 5(4) of the 1990 Act, which reads:
“Where an application is made subsection (1)(f) of section 3 … access shall not be given … to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient’s death.”
The President found that this simply meant that access to a deceased’s medical records by an individual who seeks to make a claim arising out of the patient’s death should be on a “need to know” basis only, rather than them being given open-ended disclosure of the entire content of the record.
The wording of section 5(4), referring to any claim which may arise out of the patient’s death, did not mean that only someone with such a claim (i.e. not necessarily a personal representative) was entitled to access the records.
Accordingly, the brother’s case was made out, and the President, therefore, made a declaration that it was lawful for the clinic to provide the brother with a copy of all records relating to the arrangements for the storage and use of the sperm and/or embryos created using it.
As I have said here before, when you read the report of a family case, you never know where it will lead you. I guess the same is true of family law generally…
The full judgment on the case Re AB can be found here.
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