Obtaining Medical Documentation Regarding a Deceased Patient

February 8, 2021

BRACE Law Firm ©

Access to information regarding patient treatment procedures, diagnoses, and other medical documentation is particularly relevant today. Disclosing such information directly relates to the disclosure of medical secrecy, which requires a balance of interests between the patient, the medical organization, and other parties requesting such information (e.g., the patient’s relatives).

According to Part 4, Article 13 of Federal Law No. 323-FZ dated November 21, 2011, On the Fundamentals of Health Protection of Citizens in the Russian Federation (the "Law on Health Protection"), the provision of information constituting medical secrecy without the consent of a citizen or their legal representative is permitted for the purposes of medical examination and treatment of a citizen who, as a result of their condition, is unable to express their will.

Under Article 22 of the Law on Health Protection, everyone has the right to receive information available in a medical organization about their health status in an accessible form, including information on medical examination results, the presence of a disease, the established diagnosis and the prognosis for the disease's development, methods of medical care, the associated risk, possible types of medical intervention, its consequences, and the results of medical care.[1]

In the event of an unfavorable prognosis for the development of a disease, the information must be communicated in a delicate form to the citizen or one of their close relatives (children, parents, adoptees, adoptive parents, biological brothers and sisters, grandchildren, grandfathers, grandmothers), unless the patient has prohibited communicating it to them.

The patient or their legal representative has the right to directly review medical documentation reflecting their health status in accordance with the procedure established by the authorized federal executive body and to receive consultations from other specialists based on such documentation.

Under Article 67 of the Law on Health Protection, which regulates the procedure for conducting post-mortem examinations, a conclusion on the cause of death and the diagnosis of a disease is issued to the spouse, close relatives (children, parents, adoptees, adoptive parents, biological brothers and sisters, grandchildren, grandfathers, grandmothers), or, in their absence, other relatives or the legal representative of the deceased, law enforcement agencies, the body exercising state control over the quality and safety of medical activities, and the body exercising control over the quality and conditions of medical care, upon their request. However, this article provides an exhaustive list of grounds for conducting a post-mortem examination.

According to the Procedure for Familiarizing a Patient or Their Legal Representative with Medical Documentation Reflecting the Patient's Health Status, approved by Order of the Ministry of Health of Russia No. 425n dated June 29, 2016, the grounds for a patient or their legal representative to review medical documentation is the receipt by the medical organization of a written request for the provision of medical documentation for review from the patient or their legal representative. Before transferring the original medical documentation to the patient or their legal representative for review, a copy of the medical documentation is preserved on paper.[2]

However, the procedure for providing medical documentation regarding a deceased patient to relatives (other legal representatives) remains unregulated to date. This raises numerous questions regarding the possibility of reviewing the medical documentation of a patient whose death occurred in a medical institution. Often, relatives of a deceased patient, grieving the loss of a loved one, wish to obtain full and reliable information about the causes of the patient's death and, potentially, rule out medical error. However, not all medical organizations are ready to provide the requested information.

In 2017, the Russian Center for Forensic Medical Expertise of the Ministry of Health of Russia issued methodological recommendations stating that a conclusion on the cause of death and the diagnosis of a disease is issued to the spouse, close relatives (children, parents, adoptees, adoptive parents, biological brothers and sisters, grandchildren, grandfathers, grandmothers), or, in their absence, other relatives or the legal representative of the deceased. Accordingly, in cases where information about the cause of death and the diagnosis of a patient's disease is available to an interested person by virtue of law, keeping information about the medical intervention measures taken, in particular about diagnostics, treatment, and prescribed medications, secret from them cannot be justified in all cases by the need to protect medical secrecy, especially considering the motives and goals for requesting such information. In such situations, when preparing a civil case for trial, law enforcement agencies when deciding whether to initiate a criminal case, and the prosecutor when conducting an inspection to oversee the observance of human and civil rights and freedoms may, based on the principles of proportionality and fairness, decide on the need to familiarize the interested person with information related to the medical history of the deceased patient to the extent necessary for the effective protection of the applicant's rights and the rights of the deceased person.[3]

Nevertheless, to date, no corresponding amendments have been introduced at the legislative level that would allow relatives of a deceased patient to freely review medical documentation in a medical institution (without involving law enforcement agencies or filing a lawsuit).

This legislative gap is described in detail in Resolution of the Constitutional Court of the Russian Federation No. 1-P dated January 13, 2020, On the Case of Reviewing the Constitutionality of Parts 2 and 3 of Article 13, Paragraph 5 of Part 5 of Article 19, and Part 1 of Article 20 of the Federal Law On the Fundamentals of Health Protection of Citizens in the Russian Federation in Connection with the Complaint of Citizen R.D. Svechnikova. The reason for the case being considered in the Constitutional Court of the Russian Federation was the refusal to provide the applicant with copies of medical documentation regarding her deceased spouse, as the requested information constituted, in the opinion of the medical institution, medical secrecy. During the consideration of the case by courts of general jurisdiction and the Supreme Court of the Russian Federation, no violations were identified on the part of the medical institution, and the applicant was denied the requested claims for the provision of medical documentation.

The aforementioned act of the Constitutional Court of the Russian Federation provides detailed explanations as to why the medical documentation requested by the applicant regarding her deceased spouse must be provided.

In its Resolution, the Constitutional Court of the Russian Federation refers to its previously issued judicial acts (Resolution No. 27-P dated November 6, 2014, and Ruling No. 1275-O dated June 9, 2015) noting that medical information directly concerning not the citizen themselves but their deceased loved ones (spouse, relative, etc.), as it is connected with the memory of people dear to them, may be of no less importance to them than information about themselves. Therefore, a refusal to obtain it, especially in cases where the presence of such information would help clarify the circumstances of death, significantly affects their rights—both property and personal non-property rights. When it comes to the death of a person, the reality of the suffering of their family members is not questioned. This is even more significant in a situation where a spouse or relative suspects that the death of a loved one was caused by untimely or poor-quality medical care.[4]

Additional confirmation of the Constitutional Court's position is the practice of the European Court of Human Rights (judgments dated February 25, 1997, in the case of Z. v. Finland; dated August 27, 1997, in the case of M.S. v. Sweden; dated June 6, 2013, in the case of Avilkina and Others v. Russia, etc.). In particular, the European Court of Human Rights notes that the state's procedural obligations to ensure the right to life (Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms) include the obligation to create an effective legal mechanism for establishing the causes of death of patients in the care of medical workers in both the private and public sectors and for holding all those responsible accountable. If a violation of the right to life or personal integrity was not committed intentionally, the state's positive obligation arising from Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms is reduced to the creation of an effective legal mechanism for protection. Such protection can be carried out both through criminal prosecution and in a civil law procedure so that victims can establish the civil liability of doctors through the court, as well as receive compensation for harm and achieve the publication of the court decision.

Recommendation CM/Rec(2019)2 of the Committee of Ministers of the Council of Europe dated March 27, 2019, On the Protection of Health-Related Data, when determining the legal grounds for processing health-related data (Principle 5), provides for cases where such processing may be carried out without the consent of the data subject, in particular, if the processing is necessary for the recognition, exercise, or defense of a legal claim. This does not exclude the possibility that such information may be transferred regardless of obtaining the patient's lifetime consent for the purpose of resolving a civil law dispute between their relatives and a medical institution.

Furthermore, access to the medical information of the deceased may be required by their family members in connection with the exercise of their right to health protection and medical care (Article 41, Part 1, of the Constitution of the Russian Federation), in particular, when there is a need to diagnose and treat genetic, infectious, and other diseases.

Thus, the Constitution of the Russian Federation provides for the possibility of establishing a special legal regime for information relating to medical secrecy, including a regime for restricting free access to it by citizens, while taking into account that guarantees for the protection of the private life, honor, and dignity of the deceased and the good memory of them, as well as the protection of the rights and legitimate interests of their loved ones, cannot be excluded from the sphere of general (public) interest in a state where a person, their rights, and freedoms are the highest value.[5]

As a result of the above conclusions of the Constitutional Court of the Russian Federation, it has been established that in order to bring the legal regulation concerning the right of spouses, close relatives, or other interested parties to access the medical documentation of a deceased patient into compliance with the constitutional criteria of the certainty of legal norms, the federal legislator must introduce changes to the current legislation that will allow for the normative determination of the conditions and procedure for access by the named persons to the medical documentation of a deceased patient.

Also, the indicated Resolution of the Constitutional Court of the Russian Federation stipulates that pending the introduction of the necessary changes to the legislation arising from this resolution, medical organizations must, upon the request of close relatives (family members), provide them with the patient's medical documents for review, with the possibility of making copies (photocopies) on their own, and if the relevant medical documents exist in electronic form—provide the corresponding electronic documents. At the same time, a refusal of such access may be recognized as permissible only if, during their lifetime, the patient expressed a prohibition on the disclosure of information about themselves that constitutes medical secrecy.

In connection with the issuance of the indicated Resolution of the Constitutional Court of the Russian Federation, Draft Law No. 987162-7, On Amending the Federal Law On the Fundamentals of Health Protection of Citizens in the Russian Federation in Part of Ensuring Access for a Spouse, Close Relatives, and Other Family Members or Other Persons with the Written Consent of the Patient or Their Legal Representative to Information on the Patient's Health Status, Including Medical Documentation, Including After the Patient's Death, is currently undergoing its first reading in the State Duma of the Russian Federation. According to the draft, the patient or their legal representative has the right to directly review medical documentation reflecting their health status and receive consultations from other specialists based on such documentation. A spouse, close relatives (children, parents, adoptees, adoptive parents, biological brothers and sisters, grandchildren, grandfathers, grandmothers), and other family members or other persons specified in the informed voluntary consent for medical intervention have the right to directly review the patient's medical documentation, including after their death, unless the patient or their legal representative has prohibited providing the medical documentation for review to the indicated persons.

At the same time, it is proposed to supplement Part 7 of Article 20 of the Law on Health Protection with a sentence establishing that when processing an informed voluntary consent for medical intervention, a citizen or their legal representative has the right to determine the persons to whom information on their health status may be transferred in the interests of the patient, including after their death.[6]

However, despite the fact that the indicated amendments to the legislation bring some clarity to the procedure for relatives to provide information from the medical documentation of a deceased patient, they still do not provide a full understanding of the situation when the patient cannot give informed voluntary consent for medical intervention (including cases of a patient's admission to a medical organization while unconscious, in case of mental disorders, or in the case of incapacity). The question also remains not fully clarified as to what happens if the deceased patient did not prohibit providing medical documentation for review to relatives but also did not include them in the circle of those to whom such information may be presented.

In particular, in accordance with Article 20 of the Law on Health Protection, medical intervention without the consent of a citizen, one of the parents, or another legal representative is permitted:

1. if medical intervention is necessary for emergency indications to eliminate a threat to a person's life and if their condition does not allow them to express their will or there are no legal representatives;
2. in relation to persons suffering from diseases that pose a danger to others;
3. in relation to persons suffering from severe mental disorders;
4. in relation to persons who have committed socially dangerous acts (crimes);
5. when conducting a forensic medical examination and (or) a forensic psychiatric examination;
6. when providing palliative medical care, if the citizen's condition does not allow them to express their will and there is no legal representative.

Nevertheless, there are no amendments to the indicated provisions as proposals in the draft law regarding the fact that in the cases listed above, it is possible to provide medical documentation to the relatives of a deceased patient.

The above-mentioned Resolution of the Constitutional Court of the Russian Federation No. 1-P dated January 13, 2020, played a significant role in initiating the resolution at the legislative level of the problems of medical organizations refusing close relatives of a deceased patient the opportunity to review medical documentation containing relevant information about them.

However, we believe that in its current edition, Draft Law No. 987162-7 is insufficiently developed and requires clarification. In particular, it is necessary to introduce amendments explaining in more detail the case of relatives of a deceased patient reviewing medical documentation if informed voluntary consent for medical intervention could not be obtained from the patient.

It seems that if a patient did not expressly prohibit providing information about themselves to close relatives, the right to receive this information should be unconditional and its exercise should not depend on the will of certain medical workers, the administration of the medical organization, or other persons, nor on the fact of whether or not the deceased specified their close relatives in the informed voluntary consent.

Anna Ivanova Attorney at BRACE Law Firm February 8, 2021

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References

[1] Federal Law No. 323-FZ dated November 21, 2011, On the Fundamentals of Health Protection of Citizens in the Russian Federation.

[2] Procedure for Familiarizing a Patient or Their Legal Representative with Medical Documentation Reflecting the Patient's Health Status, approved by Order of the Ministry of Health of Russia No. 425n dated June 29, 2016.

[3] Procedure for Conducting Forensic Medical Examination and Establishing Causal Relationships Regarding the Fact of Non-Provision or Improper Provision of Medical Care. Methodological Recommendations approved by FGBU "RCSME" of the Ministry of Health of Russia on June 21, 2017.

[4] Ruling of the Constitutional Court of the Russian Federation No. 1275-O dated June 9, 2015, On the Refusal to Accept for Consideration the Complaint of Citizen Vladimir Nikolaevich Zubkov regarding the Violation of His Constitutional Rights by Parts 2, 3, and 4 of Article 13 of the Federal Law On the Fundamentals of Health Protection of Citizens in the Russian Federation.

[5] Resolution of the Constitutional Court of the Russian Federation No. 1-P dated January 13, 2020, On the Case of Reviewing the Constitutionality of Parts 2 and 3 of Article 13, Paragraph 5 of Part 5 of Article 19, and Part 1 of Article 20 of the Federal Law On the Fundamentals of Health Protection of Citizens in the Russian Federation in Connection with the Complaint of Citizen R.D. Svechnikova.

[6] Draft Federal Law No. 987162-7, On Amending the Federal Law On the Fundamentals of Health Protection of Citizens in the Russian Federation in Part of Ensuring Access for a Spouse, Close Relatives, and Other Family Members or Other Persons with the Written Consent of the Patient or Their Legal Representative to Information on the Patient's Health Status, Including Medical Documentation, Including After the Patient's Death.