PATIENT RECORDS AND
ACCESS REQUESTS BY THIRD
PARTIES TO THE RECORDS
AND RELATED MATTERS
1.
Proper maintenance of
records - best practice.
2. Systemic negligence in
GP practices.
3. Third Party access
requests - Freedom
of Information/Data
Protection/Coroners Act.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
PROPER MAINTENANCE
OF RECORDS There is a legal and ethical obligation to
maintain accurate patient records within
all GP practices. How individual practices
choose to maintain the records is a matter
for themselves. At a minimum the records
should document:
1. The presenting complaint
2. Relevant medical history
3. Current medication
4. Vital signs
5. Diagnosis
6. Care plan
7. Reason for referral (if appropriate)
8. Patient refusal to follow medical advice (if applicable)
Computerised patient records should be set up in such a way that there is a robust
audit trail. It is a continuing theme in medical negligence claims that allegations of
tampering or correction of entries are made post event. In the event that an entry is
made other than contemporaneously, then the records should reflect that fact.
The records should clearly distinguish between clinical examination of the patient or
visits to the practice for other purposes - e.g. repeat prescriptions
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
SYSTEMIC NEGLIGENCE IN GP PRACTICES The obligation to maintain proper records rests with the principal or partners in a
practice, not with the practice manager or support staff. Thus, whilst at a practical
level the day to day management of the practice records and system of maintaining
records may be dealt with by support staff, individual GPs must always keep
abreast of how patient records within their practice are kept.
Common examples of how doctors facing a medical negligence claim can find
their defence of a medical negligence action compromised due to poor record
keeping include :
•
Inconsistent policy or no policy in relation to scanning and review of incoming
test results or letters from consultants.
•
Responsibility for transcription of hospital prescriptions for GMS patients being
left with support staff with minimal or no review procedures by the clinician.
•
No protocols in place for tracking
incoming test results with outgoing
requests thus allowing a possibility of
a test ordered by a doctor not being
reported by
the laboratory.
•
Inconsistent or no policy in relation to
review of the records when a patient is
being seen by different doctors within
the practice on each visit.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
3RD PARTY ACCESS
REQUESTS FOR COPIES
OF PATIENT’S MEDICAL
RECORDS OR INFORMATION
ON A PATIENT As a starting point, all patients of the practice are entitled to access to their medical
records. The exceptions are where revealing such information would compromise
the health of the patient or the health of others or unwittingly breach the duty of
confidentiality to other parties.
The duty of confidentiality is a cardinal principle and extends to all support and ancillary
staff working within the practice. It extends to all aspects of patient care, even after
death, including the patient being registered with the practice, attending for treatment
and diagnosis.
We recommend in all situations that the request should be in writing and held on the
patient’s file. If after considering the request, it is decided to release the records, details
of the information provided to the patient or the third party, such as records from X to
Y date provided to the patient (or identify the third party) on a particular date should be
entered on the patient’s chart.
The more problematic issue is where disclosure of patient information is sought by a
3rd party. As an initial step always seek the consent of the patient in the first instance.
If a patient refuses you must consider the reason for refusal and document the fact
of refusal. You must then ask yourself whether there is a valid reason to release the
records in circumstances without the patient’s consent and they include:
·
On foot of a Court order
·
Legislative exceptions such as notifiable diseases
·
Children First guidelines where children may be of risk of neglect or harm
·
Incapacitated patients and where their best interest requires
·
Where the public is at risk of serious harm to health or death
We strongly recommend contacting your indemnifier in such circumstances and if
required obtain written legal advice to protect your professional interests. If the advice
is that an exceptional circumstance prevails, you must record the factors for disclosing
information without the patients consent in their chart.within the practice.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Request for Disclosure with the Consent of the Patient
It is necessary for the safe delivery of care to your patients that information is shared
with other health care professionals be it other GPs, nurses or support staff within the
practice or consultants in hospitals to whom you refer the patient. However it should
not be assumed that the patient is aware that this sharing of information will occur. They
should be advised of this necessary disclosure either directly or by leaflets or posters
within the practice.
Most patients will understand and consent to such information sharing. If however a
patient objects to this, you are obliged to accept their wishes but at the same time
advise them as to the likely adverse outcome for their care arising from their refusal e.g. that a referral that you consider essential to their optimum care cannot take place in
view of their refusal and this refusal should be documented within the records.
Request for Disclosure without the consent of the Patient
There are exceptions at law to the cardinal principle of patient confidentiality,
principally to comply with infectious disease control legislation ,Children’s First
Guidelines, with legislation on incapacitated persons, or by Order of Court
(including the Coroners Court ) or Tribunal ( for example the Medical Council or the
Pharmaceutical Society of Ireland).
There may also be a duty to disclose such information on a public interest basis
where a failure to do so would expose either the patient or others to a risk of death
or serious harm.
We will look at a number of scenarios where a duty to disclose without the patient’s
consent may arise and consider whether the GP would be justified in making such
a disclosure.
Irrespective however of whether the GP is so justified, any GP acting with ordinary
care should ALWAYS seek the consent of the patient in the first instance if
practicable, consider the reason for refusal and document the fact of the patient’s
refusal, their reason for so doing and the justification of the doctor for the decision
to disclose notwithstanding the patient’s refusal.
Furthermore you should ALWAYS take advice from colleagues within the practice
and from your professional, regulatory or defence organisation if you have the
slightest doubt about your entitlement to disclose.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
By their very nature these situations of disclosing patient information without
consent involve issues of an emergency nature and so the entire process of
considering the request, consulting the patient and other parties and disclosing the
information ( if it is felt appropriate to do so ) should be dealt with promptly.
Family members sometimes become involved in a patient’s care and require
copies of records for various reasons. This information cannot be provided without
the patient’s consent. Adult children of elderly patients will often request this
information. Consideration as to the best interests of the patient and their capacity
are factors to be considered before the release of such records. Many GPs will ask
an elderly patient if they are happy for them to discuss their care with their adult
children and if consent is received this should be recorded in their records. If in
any doubt please contact your indemnifier for advice before releasing records to a
family member without consent.
Insurance companies and solicitors may seek certain information relating to claims
made by patients. A doctor must be conscious of the extent of the patient’s
consent to the release of information to such entities. Furthermore, contracts
between patients and insurance companies are based on the concept of utmost
good faith. Be careful not to fall foul of a limited consent from a patient. If
information is relevant and withheld from an insurance company for example, the
GP may become personally liable in the event that the indemnity is refused to the
patient at a later stage. If a patient refuses consent to disclose relevant information
you should not provide a report on their behalf.
In summary:
a.Get the patient’s consent in writing to the release of any records to a third party.
Respect the patient’s consent or refusal unless the refusal to release the records
could result in harm to the patient or another person.
b.If a copy of a patient’s written consent is provided to you by an insurance
company or a solicitor as part of their application for a copy of the patient’s
records, check the date that the consent was given. If the consent was provided
more than a number of weeks before the letter to you, follow up with the
patient directly and confirm that the patient continues to consent to the release
of their records.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
c. Review the request for records carefully – does the third party require a full
copy of the patient’s records, or does the request relate to a recent injury or
recent treatment for example. If the request is specific to an event, incident or
allegation, the records released should be limited to that circumstance. The
crucial factor arising from recent case law is that the patient must be made
aware of the extent of the records released. Therefore, when a request is
received from an insurance company the records must be reviewed by you
as the patient’s GP. It should not be passed on as an administrative task to
copy the complete records without asking what was the extent of the consent
received and what information is relevant and should be disclosed.
d.There are rare occasions when consent is not required, but it is important to
inform the patient that their records will be released. A doctor should always
take advice in such limited situations.
We will now consider a number of such scenarios which a GP can expect to meet
over the course of their professional career :
FAMILY
Scenario 1
Patrick and Mary are married and you know them very well as they have been your
patients for many years. Patrick comes to the practice to have a PSA blood test
done as he has a family history of prostate cancer. One week later Mary telephones
the practice requesting Patrick’s blood results and says Patrick would never get
around to getting the results himself so she is ringing on his behalf. Should you give
her the results?
The answer is of course no. The blood results are confidential and should only be
given to Patrick unless you obtain his consent to disclose the information to Mary.
A patient may give oral consent to the release of confidential information to a third
party and whilst this is generally adequate, best practice would dictate obtaining
written consent. This applies particularly to elderly patients when a son or daughter
telephones on their behalf.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Scenario 2
An elderly patient died recently and his son wants some details regarding his
father’s medical records. Can you give him the information ?
There is a distinction here between the ethical and legal requirements. Legally a
patients right to confidentiality dies with him as there is no right for sue for breach of
confidentiality after death.
The Medical Council take the view however that the ethical duty of confidentiality
continues after death.
In considering such a request you need to consider the wishes of the patient. If the
patient had before death specifically requested that medical information should not
be disclosed to third parties you are obliged to respect that wish.
If no such request has been made by the patient then you need to consider why
the request is being made and whether the information would be beneficial or
detrimental to the family.
If a decision to disclose is made, then the consent of the Personal Representative
or Executor should be sought in writing (in most instances this would be the widow
or widower or child of the deceased).
The usual arrangement is that the original records are retained within the practice
and photocopies will be provided.
As a matter of professional courtesy, and insofar as disclosure of records may
involve disclosing Consultant’s letters or documents, the Consultant(s) should be
informed of the impending disclosure before the records are actually released in
copy form to the Executor or Personal Representative.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Scenario 3
You receive a request from an estranged husband or partner seeking medical
records of infant children. What do you do ?
Under Irish Law the natural mother is automatically a guardian; the father is also
automatically a guardian if he is either married to the mother at the time of the birth
or becomes a guardian on subsequent marriage after the birth.
However the natural father of the child, who is not married to the mother can apply
to become a guardian under the Guardianship of Infants Act 1964 (He can also
become a joint guardian with the consent and co-operation of the mother).
It is important to note that the father has a right to apply to become a guardian but
not an automatic right to be so appointed.
As married parents are automatically joint guardians and custodians of the child,
in the above scenario if the party seeking disclosure is an estranged father and
there has been a divorce or separation or any allegation of abuse you should seek
consent from both parents and ideally an extract from the court divorce order or
separation agreement providing for guardianship issues.
If the parents are not married then you should seek further documentary evidence
that the father is a guardian of the child.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Scenario 4
A mother of an infant patient alleges that her child is suffering from anxiety attacks
as a result of acrimonious family law proceedings between herself and her
estranged husband and she wants a referral to the local child psychiatric services.
The child wants no contact with her father and the mother does not want the
referral to be disclosed to her husband. Can you proceed with this referral without
the knowledge and consent of the father of the child ?
The law is not entirely clear in relation to this scenario. On the one hand the father
is a legal guardian and has a right to be consulted. On the other hand the child is
your patient and you are obliged to act in her best interest. What you are required
to do is balance these perhaps conflicting interests but always giving higher
consideration to the best interest of the patient.
The answer to this scenario lies with the urgency of the situation, the likely reaction
of the estranged father and the impact it may have on the infant. This is a case
where the taking of advice from your professional, regulatory and defence body is
mandatory.
This scenario was considered by
Mr Justice Birmingham in a recent
decision (22nd March 2013) in the
case of JO’N-v-SMcD & others. The
net point did not fall to be decided
by the court in this instance but the
indication given was that the court
would attach greater importance to
the best interest of the minor than
some perceived property rights
which the parent perceives they
have vis a viz their child.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
OCCUPATIONAL HEALTH
Scenario 1
John has recently been diagnosed with diabetes and is on insulin therapy. He
works as a van driver for a local furniture company. His diabetes is poorly
controlled and he has been having a number of hypoglycaemic attacks whilst at
work. He tells you that he does not want to take sick leave as he may lose his job
and he does not want his employer to know that he is unwell. You are concerned
that he could have an attack whilst driving. John is insistent that this information
should be kept confident. What should you do?
Disclosure of patient information without consent may be justifiable in exceptional
circumstances where it is necessary to protect public interest and protect the
welfare of others.
Before making such a disclosure you should first try and obtain your patient’s
consent and highlight to him the danger to himself and others of driving under
these circumstances.
If his consent is still not forthcoming you need to weigh up the potential harm to the
patient (i.e. losing his job) as against the potential harm to himself and others (i.e.
risk of death to serious injury) before making a decision.
If it is your considered professional opinion that the balance lies in favour of
disclosure then you need to take the following actions :
1. Urgently seek the advice of your professional, regulatory or defence body.
2.Following same and on the assumption that they agree with your decision inform
the patient of your decision to disclose notwithstanding his refusal to consent to
the disclosure
3.Disclose the information promptly thereafter to the appropriate person
or authority.
4. Document all of the foregoing in the patients records.
As a matter of professional courtesy, and insofar as disclosure of records may
involve disclosing Consultant’s letters or documents, the Consultant(s) should be
informed of the impending disclosure before the records are actually released in
copy form to the Executor or Personal Representative.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Scenario 2
A GP does some Occupational Health work for a company. One of the employees
is taking an Action against the company. The company is requesting a medical
report on the patient. The patient originally signed a consent with the company
for GP services. The patient is not now willing to give consent for the release of
such a report. Does the original consent signed by the patient imply consent in the
circumstances ?
Bearing in mind that the relationship between the employer and patient has
radically altered in that they are now opposing parties in contentious litigation I
believe that the original consent does not permit the release of such a report and
that further patient consent should be sought.
A more controversial area is the release of “standard” reports to the employer. This
issue needs to be approached with caution. The consensus is that the issuing of
such reports in relation to common illnesses such as influenza is covered by the
initial consent. The patient is not automatically entitled to a copy of such a report
although the consent of the company should be sought. In the event that the
company withholds their consent this should be documented.
Scenario 3
You are remained by an employer to carry out screening tests on their employees.
A blood test on one of their employees reveals a potentially serious condition
which, whilst not necessarily relevant to the employer may have potentially serious
consequences for the employee. The employee is not a patient of your practice.
What obligation do you have to this employee ?
Nothwithstanding the fact that this employee is not your patient, once you
become aware of such a potentially serious situation, you have a duty of care to
this employee and must ensure that he is aware of the results and of the further
investigative steps that need to be taken. You should ensure that the patient
receives the results of these steps and this communication should be carefully
documented. Best practice dictates that all such employees who are being
screened have their GP details logged and that their own doctor is notified of the
results of all tests.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Scenario 4
I have often been asked for medical reports regarding patients from employers to
insurance companies. Some patients do not want me to disclose particular details
of their history. What should I do ?
Before disclosing any personal information to an employer or insurance company
you must have the express consent of the patient. Any requests from employers or
insurance companies should be discussed in detail with the patient and the patient
must be made aware that this personal information may be shared with nonmedical personnel.
I certain circumstances you may ask the employer or insurance company to amend
their requests for information so that only relevant information is disclosed and that
sensitive personal information will not be included.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
SOCIAL WORKERS/HSE
Scenario 1
A Social Worker requested a report on a minor child from you in a case where
abuse was suspected. The matter is proceeding to Court. Your report given
to the Social Worker has been added to the Book of Evidence. You are now
concerned as to confidentiality.
The giving of information to others with a duty to safeguard the welfare of a child
or children at risk is not a breach of confidentiality. The Protection for Persons
Reporting Child Abuse Act 1998 provides for the protection from civil liability of
those who have communicated a report of child abuse “reasonably and in good
faith” to designated officers of the HSE or to any member of An Garda Siochana.
As a matter of professional courtesy, and insofar as disclosure of records may
involve disclosing Consultant’s letters or documents, the Consultant(s) should be
informed of the impending disclosure before the records are actually released in
copy form to the Executor or Personal Representative.
Scenario 2
A social worker asks you whether a patient of your practice is pregnant as her
children re already on the at risk register and a case conference is due the next day.
The patient will not consent to the release of this information.
We believe that the GP is entitled to disclose this information if the GP believes in
good faith that there are real and substantial risks to the health and welfare of the
existing children and the unborn child.
It is however essential that you advise those attending the Case Conference that
the information is being disclosed without the consent of the patient, that this is a
break of patient confidentiality and that he or she is taking this unusual step as he
or she believes this is necessary to protect the patient and others (i.e. the children
and/or the unborn child) from serious risk of death or serious hard. In doing so the
GP brings themselves within the terms of Clause 28.1 of the Medical Council Guide
to Professional Conduct and Ethics for Registered Medical Practitioner, Seventh
Edition, published in November 2009.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
It is important however to note that these guidelines require the doctor to attempt
to obtain consent and to use his best endeavours to ensure that the Case
Conference does not proceed on the basis of incorrect information.
Needless to say all of the foregoing steps should be documented in the records.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
INSURANCE
Scenario 1
You have received a request for records via a Life-assurance Company. You are
concerned due to the sensitive nature and reference to other family members in the
notes. What should you do?
You see the patient and complete the necessary form (PMA and Questionnaire). If
there is a further difficulty, the life insurance company may accept a longer Medical
Report - not a PMA form. If this course of action is being suggested, it could be
indicated that the reason the detailed records were not produced is because of the fact
that the records include references to members of the patients family i.e. parties other
than the patient.
Scenario 2
An Insurance Company looks for test results on a patient. The Patient has given written
consent for the disclosure of results. The results include a specific genetic test. Should
these tests be excluded ?
Having regard to the Disability Act 2005, information regarding genetic data should not
be furnished to an Insurance Company.
Scenario 3
A patient requests you to withhold certain elements of patient records following a
request for a Medical Report and/or copy records from an Insurance Company. He
was diagnosed some years ago with Non-Hodgkins Lymphoma but is in full remission.
He has applied for a short term loan of 5 years and in your view the risk of recurrence
within this period is minimal. If you disclose the previous diagnosis he will not get then
loan. What should you do ?
A contract for insurance is construed on the basis of “uberrimae fidei” - i.e. utmost
good faith. Hence if material information/documentation is not fully disclosed to an
Insurer then, in the event of a claim and if the undisclosed information comes to the
attention of the Insurer, possible repudiation of liability by the Insurance Company may
arise leading to a personal liability on the part of the GP.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
Full disclosure therefore should be given to the Insurer but this should not be done
without the prior informed written consent of the patient.
In the event that the patient refuses such consent then the report should not be
provided by the GP.
QUERY RE RELEASE OF CONSULTANTS NOTES
Scenario 1
A patient has requested a copy of their notes which include
consultant notes/letter. Should they be included when sending
a patient a copy of their file ?
Out of courtesy consultants should be notified of an intention to
release such documentation. The patient is however entitled to
a copy of their entire chart and the refusal of an individual consultant
to consent to release of such letters or documentation does not absolve a GP
to provide same under the Data Protections Acts.
It is questionable whether a consultants consent is required prior to disclosure of
confidential information given by them on the understanding that it would be treated as
totally confidential (e.g. psychiatric illness)
The deciding factor here is whether disclosure could pose a significant threat to
the patient’s health. The views of the consultant should be sought and yet again this
is a scenario where the views of your professional regulatory or defence body should
be sought.
RELEASE OF DECEASED GP NOTES
Scenario 1
What arrangement should be put in place for the records of a deceased GP?
When a GP dies, the best arrangement is for all records to be taken over by a colleague
within the practice or a Practitioner within the area who takes over the practice or the
GMS list from the date of the doctor’s death. If this is not practical, particular records
can be returned to individual patients for transmission to their new General Practitioner.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
The patients should be encouraged to pass the files on to their new GP and this should
be documented.
The arrangements in all cases should be in consultation with the Executor or Personal
Representative of the doctor concerned.
SOLICITORS REQUESTS
Scenario 1
If I receive a Solicitor’s letter requesting medical information on a psychiatric patient of
mine who has allegedly assaulted his client should information be given ?
You should not provide such records to the solicitor representing a victim in the
absence of the patient’s written informed consent. The solicitor should only be provided
with such records on production of the patient’s written informed consent or an Order
of the Court.
GARDAI
Scenario 1
You are contacted by the Gardai in relation to an allegation of domestic abuse. The
patient does not want to report the abuse but a family member did.
If the GP is satisfied that he must personally make a complaint to the Gardai and
therefore breach patient confidentiality to protect his patient “from serious risk of death
or serious harm”, then he should do so, although he should in the first instance, attempt
to obtain his patient’s consent prior to making such disclosure. If however the patient
declines to provide consent to such disclosure, then provided that the GP is satisfied
that there is imminent and pressing risk of death or serious harm to his patient, he may
make the complaint notwithstanding the patients refusal to co-operate.
It is important that the GP makes full and comprehensive notes relating to his
consultation with his patient. When discussing matters with his patient he should ensure
that he or she is given all the appropriate advice, to include advice that the patient
consult with an organization providing support or assistance to victims of domestic
violence, and the GP should include comprehensive details in the clinical notes.
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS
If the patient either consents to the GP making a report on his behalf to the Gardai or
alternatively declines to permit the GP to make such a report, he should nonetheless
record full details of such conversations in the notes with particular emphasis on the
advice which he provide to the patient and details of the patient’s response.
If the GP remains concerned that there is a risk of death or serious harm to his patient
he should record this in the notes and further confirm that he has advised his patient
that notwithstanding his refusal of consent he has a duty to make the appropriate report
to the Gardai.
Scenario 2
You have received a request from the Gardai for medical notes on an arrested patient.
What do you do?
The patient is still assumed to have a presumption of innocence and the GP cannot
and should not release notes unless consent from the patient or a solicitor acting on
his behalf is received in writing. The GP should inform the Gardai accordingly and
document same in the notes. If consent is not forthcoming the notes should not be
released unless the Gardai produce a Court Order directing release of the notes.
Any Court order directing release of a patients notes should be referred by the GP to
their legal advisor, professional or regulatory body or defence organization.
Medisec February 2015
PATIENT RECORDS AND ACCESS REQUESTS BY THIRD PARTIES
TO THE RECORDS AND RELATED MATTERS