Data Protection Act 1998
The Data Protection Act 1998 allows a patient to see the contents of his/her medical records.
Below is a summary where all patients/representatives are given access to all relevant health information. However there are a few circumstances where it may not be appropriate:
- Any patient record should be complied with the assumption that a patient may see the contents
- Within the Act there is no provision that prohibits informal voluntary arrangements to allow patients access to their records
- Provisions within the Act that refer to the formal access of records, a patient should be given the informal access arrangements literature
A definition of records relates to the physical or mental well being of a patient, who could be identified from the information in the file which has been made by or on behalf of a Health Professional in connection with the care of the patient. This includes independent clinical/departmental files as well as the central medical record. The holder of the record is the individual with whose care the record in connection has been made. The patient is the individual with whose care the record in connection has been made.
The Health Professional is a Registered Medical Practitioner, Dentist, Optician, Pharmaceutical Chemist, Nurse, Midwife or Health Visitor, Chiropodist, Dietician, Occupational Therapist, Orthoptist, Physiotherapist, Clinical Psychologist, Child Psychotherapist, Speech Therapist, NHS Art or Music Therapist and Scientists who are Head of Departments.
The following have the right of access, the patient or if a patient is unable to access the information themselves they must give an authorised person the right of access by a written letter with their signature, or any person appointed by the court to manage the affairs of a patient. If the patient had died, the patient's immediate next of kin or any person having a claim arising from the death.
There are a few exceptions where the applicant is entitled to inspect or to be supplied with a copy of the whole record or an extract of the record. Under the terms of the Act Health Professionals, with two exceptions cannot withhold their consent to access the record. The exceptions to this are as follows: -
- Where in the opinion of the Health Professional, giving access would disclose information likely to cause serious harm to the physical and mental well being of the patient or any other individual.
- Where giving access would in the opinion of the Health Professional disclose information relating to or provided by an individual other than the patient who could be identified from the information.
However, access can be given where the individual who could be identified has consented to the disclosure. The rule does not apply if the individual who could be identified is a Health Professional involved in the care of the patient.
NB the right of access is granted to a patient or a person authorised in writing by the patient. The holder of the record may deny an applicant's request for access when the Health Professional has formed the view that the patient authorising the access has not understood the meaning of the authorisation.
In addition, patients who are children (i.e. persons under 16 years of age) who in the view of the appropriate Health Professional are capable of understanding what the application is about, may prevent a person having parental responsibility from having access to the record.Where in the view of the Health Professional the child patient is not capable of understanding the nature of the application, the holder of the record is entitled to deny access if it were not felt to be in the child's best interest.
Where the patient has died, the Act enables such a patient before death to request that a note be included in the record that he/she does not wish access to be given on an application.
If a record contains terminology that is not understood by the patient, the Health Professional concerned must give an explanation. Although a lay administrator may supervise inspection of records that individual may not comment on or discuss the contents.
In the event that an applicant required an explanation the lay administrator will contact the Health Professional. If he/she is not available the administrator will seek an appointment with the Health Professional for the patient.
If the applicant has a correction for his/her records he/she can ask for any inaccuracies in the record tobe corrected. The Health Professional/Lay Administrator should either make the necessary correction or make a note in the relevant part of the record that is alleged to be inaccurate.
There are statutory time limits to process the request. If the individual has previous notes that are older than 40 days, the holder has 40 days from receipt to process the request. If the individual is a new patient or previous notes are less than 40 days old, there is 40 days from receipt to process the request.
For written applications there is a 14-day period during which time the Trust must request any proof of credentials or identity. The time limit restarts from the date of receipt of further information.
NB All time limits are calendar days not working days.
Charges can be made under the terms of the Act. The Trust is entitled to collect a fee not exceeding £10.00 for access to a record where the patient has not been seen within 40 days. In addition they are entitled to levy a charge for photocopies of notes supplied on request, based on a current tariff of 23 pence per sheet, with a maximum charge of £50.00.
Applicants have the right to apply to the High Court or County Court if the holder of the record appears to have failed to comply with the Act.