In the third of a new series of Q&As, Dr Gerard Panting answers questions on medico-legal issues in general practice
Q I have been asked to return the notes of five patients to my health authority for administrative reasons, which I suspect really means post-payment verification of claims. One patient, who is also the receptionist dealing with receiving and returning medical records, objects on the grounds that she does not want clerks at the health authority poring over them. I have told the health authority this, but they say that patient consent is not required and if I do not send them back I will be in breach of paragraph 36 of my terms of service. What should I do?
A The doctors' terms of service set out the terms of contract between the health authority and the GP. Paragraph 36 states that 'a doctor shall keep adequate records of the illnesses and treatment of his patients ... and forward such records to the FHSA [Health Authority] on request as soon as possible'.
In 2000, the terms of service were amended to allow computerised medical records, but in essence the duty to maintain adequate records and return them to the health authority on request is the same.
Paragraph 36 is, however, only the starting point. In R v Mid Glamorgan FHSA,1 Sir Roger Parker said: "Information given to a doctor by a patient or third party is given in confidence and the absolute property rights [of the Health Authority] are therefore necessarily qualified by the obligations arising out of that situation."
Since October 2000, the Human Rights Act 1998 has been in force. Article 8 of the European Convention on Human Rights (now incorporated into English law by the HRA) sets out the requirement for respect for the patient's private and family life, reinforcing the individual's right to confidentiality.
Consequently, there is a conflict with the health authority and its contractual rights on the one hand, and the patient and his/her rights on the other.
To some extent, this conflict has been resolved by the case of A Health Authority v X and others, judgment delivered 10 May 2001.
The Judge held that the authority can only call for documents such as medical records if they are required by the authority to fulfil one of its functions under the 1977 NHS Act, and where documents are to be used for purposes other than the patient's welfare there is a compelling interest in their disclosure which satisfies the criteria of 'necessity' and 'proportionality', and effect and adequate safeguards are in place against abuse, particularly in relation to confidentiality.
The Judge in effect stated that where a patient refused consent for disclosure of medical records to the health authority, the matter should be referred to the courts.
- BMLR  21.1
Q A local solicitor is causing me a lot of trouble. She says that she needs a patient's entire records to press a compensation claim following a road traffic accident. It is a fat file and going through it is going to take ages, and photocopying the records will be a nightmare. The solicitor says that she will pay the standard Data Protection Act fee of £50. That is nowhere near the cost of this exercise. Can I say no?
A The £50 fee is the maximum that you can charge for supplying copies of the records. This covers everything in the medical records, including X-ray film, and applies to manual or a mixture of manual and automated records. For solely automated records, the maximum you can charge is £10.
The £50 maximum applies only to applications for access made before 24 October 2001. After that date, the maximum charge is due to drop to £10.
Fees for supplying copied medical records are a major bone of contention. However, an NHS Executive group is to seek a review which, if successful, may result in the current fee structure staying the same.
There are times when data controllers should refuse access. For example, where providing access would disclose information about someone else who has not given consent, or where disclosure would be likely to cause serious harm to the mental or physical health of the applicant or any other person.
Checking through the records to ensure that neither of these situations applies is time consuming and tedious. However, it is a necessary part of the process: if some correspondence relating to another individual has inadvertently been filed in your patient's record, a breach of confidence will occur. In some instances, where this is not immediately obvious (e.g. where mothers and daughters have the same name), it may have a material effect upon the case, which will make the patient all the more indignant when the mistake is discovered.
Q One of my patients is 84 and senile. Her nephew contacted me recently saying that he had registered an Enduring Power of Attorney granted by his aunt. He wanted me to know so that any decision about his aunt's medical treatment could be referred to him. Is that all right?
A The Enduring Power of Attorney Act 1995 came into force in March 1996 and extends to England and Wales.
The concept is simple. An adult who is competent can grant an Enduring Power of Attorney which will continue to be in force after the individual becomes mentally incapable of handling his or her affairs.
When the individual becomes incapable, the Enduring Power of Attorney is registered with the Court of Protection, and provided that various conditions are satisfied (essentially there are no objections from other members of the family or the person who is now mentally incapable) the Attorney can take over all administrative affairs.
The Power of Attorney itself may set out various restrictions on the authority given to the Attorney but, in any event, it does not extend to giving proxy consent or refusal to medical treatment.
In so far as the Attorney requires information in the possession of the doctor to fulfil his or her responsibilities set out in the Power of Attorney, the doctor should cooperate and provide that information, but there should be no disclosure of information that is not strictly required for these purposes.