Access to medical records in probate claims and reluctant GP Surgeries

One of the first stages when considering the potential for a probate claim (i.e. Will validity claims and inheritance claims) is to gather as much evidence as can be found to support the position. Of course, the same can be said when someone is seeking to defend a claim. It cannot be forgotten that each case is entirely fact-specific and depends on the evidence supplied.

A key part of the evidence matrix will be the deceased’s medical records, particularly where there are concerns as to capacity. Under the Access to Health Records Act 1990, s.3(1)(f) confirms that an application can be made for a deceased person’s records by “… the patient’s personal representative and any person who may have a claim arising out of the patient’s death.” There are exceptions and partial exclusions to such applications, for instance, where a specific note indicates that the patient did not want to permit access or the information would not be relevant to the claim.

In the case of Tubb v Rosmellyn Surgery, it was the Surgery’s position that the daughters did not fall within the scope of the Access to Health Records Act 1990 and, therefore, they were not entitled to make such an application for the medical records. It was the Surgery’s view that “claims arising from the death of the patient” should be limited only to claims by dependents under the Fatal Accidents Act 1976, and thus probate claims ought not to be considered within the scope of the Act.

It was held that the phrasing “arising out of” should be considered widely, and not merely only in reference to direct causation. The presiding judge explained that the “deceased’s death is a necessary ingredient to [a] probate claim” and that the “right to bring [a] probate claim arises on the death of the testator.” Accordingly, a probate claim is in the scope of the Act.

This judgment provides clarification that a person who intends to pursue a probate claim has the right to apply for medical records of the deceased in the first instance. It appears that GP surgeries and hospitals may need to review their internal procedures to ensure they are aligned with this recent case. The positive is that for those who seek to investigate medical records, they may now find that their legal costs for simply obtaining the records are less than they may have been, as there may no longer be a need for a formal or contested court application.

Read the full case here: Tubb & Anor v Rosmellyn Surgery [2025] EWCC 23 (19 May 2025).

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