1 Feb 2011, 09:00

A woman was named as a joint executor of her mother's estate. After her mother died, the woman requested access to her late mother's health information. Three health agencies refused to provide the information without the authority of the other executor to the estate. The other executor had refused authority.

The woman complained to us about the refusal to provide information to her.

The complaint raised an issue under section 22F of the Health Act and rule 11(4) of the Health Information Privacy Code ('the Code'). Both of these provisions allow a health agency to disclose health information in particular circumstances.

Section 22F

This section of the Health Act provides in part that, an agency that holds health information shall, at the request of the individual about whom the information is held, or a representative of that individual, disclose that information to the individual or to their representative.

This section has been imported into the Code at rule 11(4) which also allows health information to be disclosed to a representative.

Representative

‘Representative' is defined in the Health Act and Code to mean, in part, 'where the individual is dead, that individual's personal representative'.

Personal representative is defined in the Trustee Act 1956 and refers to a deceased person's executor or administrator.

Rule 11(4)

Rule 11(4) modifies the effect of section 22F and sets out when a valid request for health information by a person's representative may be refused.

The relevant part of rule 11(4) provides that, where a request is received by a representative, a health agency:

(b) may refuse to disclose information to the representative if:

(i) the disclosure of the information would be contrary to the individual's interests;
(ii) the agency has reasonable grounds for believing that the individual does not or would not wish the information to be disclosed; or
(iii) there would be good grounds for withholding the information under Part IV [sections 27-29] of the Privacy Act if the request had been made by the individual concerned.

The woman was an executor of her late mother's estate so was 'a representative' under section 22F and rule 11(4). She was therefore entitled to request the information and an agency could only refuse for the reasons contained in rule 11(4).

One of the health agencies suggested that ‘administrator', as cited in the Administration Act 1969, means both executors or administrators of an estate.

‘Administrator' is defined in the Administration Act as 'any person' to whom administration is granted.

Under the Code all executors or administrators have the same right to request access to the deceased person's medical information.

An agency does not need the authority of all executors of a deceased person's estate to release information to one of them. Any agency that receives a request from one executor or administrator should therefore respond as if the request was made on behalf of the deceased individual, unless it has reasonable grounds for believing the deceased would not have wanted the disclosure to occur.

Likewise, the Code provides either parent of an individual under the age of 16 is able to request health information about their child as they are considered to be their legal representative. An agency receiving such a request does not require the consent or authority of the other parent to release information and should be prepared to release the same information to either parent on request.

After receiving this view, the agencies agreed to release the late mother's health information to the woman.

December 2011

Disclosure of health information - request from executor of deceased person's estate - representative - consent of other executor not required - Section 22F Health Act - Rule 11(4) Health Information Privacy Code