A dead person’s notes
‘Business Dilemmas’
Dr Kathryn Leask
Dr Kathryn Leask explores the implications of the Access to Health Records Act 1990
Dilemma 1
Can he have his brother’s notes?
Q I am a private gastroenterologist and had been involved in the care of a patient with metastatic bowel cancer. The patient has sadly died and his brother has requested a copy of his records.
I understand that the family of the deceased are making a clinical negligence claim against the NHS hospital and GP due to concerns about a delay in referral and diagnosis.
The brother has quoted the Access to Health Records Act 1990, stating that he has a claim arising out of the death and, as such, he is entitled to a copy of the entire record.
A Unlike a living patient, where the data protection regulations apply, the relevant statute covering requests for records of deceased patients is the Access to Health Records Act 1990.
Under section 3(1)(f) of the Act, an application for access to a deceased patient’s health records can be made by ‘the patient’s personal representative and any person who may have a claim arising out of the patient’s death’.
Whether the brother is entitled to receive a copy of the deceased’s entire record will depend on whether he is the personal representative. The Act goes on to say at section 5(4) that ‘… access shall not be given … to any part of the records which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient’s death’.
It was clarified by the High Court that a personal representative of the deceased does have a right of access to all of the records, not just those relevant to any claim which may have arisen out of the death. In this case, there is no requirement to limit the disclosure, bearing in mind the exemptions below.
Relevant to the claim
If a request for the records is made by someone other than the personal representative but who has a claim arising out of the death, they are only entitled to records which are relevant to the claim.
So it is important to establish whether the deceased’s brother is the personal representative.
A personal representative should be able to provide evidence of their status; for example, by providing a copy of a Grant of Probate or Letters of Administration. Alternatively, a certified copy of the patient’s will should make reference to who the personal representative or executor is.
There may be other reasons why records should not be disclosed, even to the personal representative, and the Act refers to this at section 4(3) and 5.
Information that is likely to cause serious harm to the physical or mental health of any individual, information relating to an individual other than the patient and information provided by the patient with the expectation that it would not be disclosed in the event of their death may be exempt from disclosure.
Dr Kathryn Leask is a medico-legal adviser at the MDU
A colleague has a drink problem
Dr Sissy Frank
A doctor raises concerns about a colleague’s behaviour. Dr Sissy Frank responds
Dilemma 2
How do I report his drink issue?
Q I recently went out to dinner in a local restaurant and recognised a colleague from one of the hospitals where I have practising privileges.
He was standing at the bar and seemed quite drunk. I mentioned this to one of my other colleagues. She replied she had seen him out in restaurants and bars before and he was usually drinking heavily.
The next time I had a clinic at the hospital, I heard staff talking about an emergency involving a patient who had had complications following surgery. I was shocked to learn that the patient had been intubated by the colleague I had seen at the bar and discovered that this would only have been a few hours afterwards.
I understand that the procedure was successful and the patient recovered, but I’m concerned that my colleague was working shortly after drinking so much alcohol. I think he needs help, but I wouldn’t want to make things worse by reporting this through formal channels.
What should I do?
A Your colleague’s behaviour puts patients at risk as well as his own career and reputation. This overrides any personal or professional loyalties.
If this is a close colleague, you could consider talking to him about your concerns in the first instance and encourage him to seek help. Be sympathetic but make it clear that you are concerned that patients are being put at risk and be clear that you will need to take action if the issue is not addressed.
If this approach is unsuccessful or you don’t feel it is an option to discuss this directly with your colleague, you can report your concerns in line with the hospital’s procedure for raising concerns.
This would generally involve raising the matter with the doctor’s line manager or a senior manager in the department.
You would not have to have proof of the excess drinking and it should be accepted that you have acted in good faith.
If you raise this verbally, it’s also advisable to follow up in writing and keep a record of correspondence so you can document the steps you have taken to raise your concern if necessary.
Strict confidentiality
If your colleague was found to have an alcohol problem, then the hospital would likely support him by involving occupational health and ensuring that he sought appropriate treatment.
It should also treat his case as a health problem, which requires strict confidentiality. This means you should not expect a detailed report of the outcome, although it would be legitimate for you to confirm that your concerns had been acted upon.
Even if the doctor is referred to the GMC, the usual approach would be to offer health assessments, although the GMC may restrict his practice to ensure patient safety. However, the GMC would not erase a doctor solely because of health concerns.
While it may be difficult to raise concerns about a colleague’s health because of worries that it could cause problems for them or make interactions uncomfortable, patient safety is paramount and if you feel a colleague’s health may put patient safety at risk, you should take steps to protect the patients.
Be reassured that reporting health concerns about other doctors often means that the doctor is enabled to confront the issue and to access the help and support they need to practise safely in the future.
Dr Sissy Frank is a medico-legal adviser at the MDU