Business Dilemmas

Dr Sissy Frank, medico-legal adviser at the Medical Defence Union, explains how to respond to a court order provided by the police. 

 

 

 

 

Dilemma 1

Must I disclose patient’s data?

Q As a private GP, I was recently emailed a copy of a court order by a police officer. 

The order states that the patient’s GP is to provide the police officer with a copy of the medical record of my patient pertaining to their mental health or alternatively allow the police officer access to the relevant portions of the record. 

The police explain that the patient had committed a serious crime, harming another person. There is no consent from the patient to disclose the information. Should I disclose this data?

A The GMC’s guidance on confidentiality explains the importance of the ethical and legal duty of confidentiality, but makes it clear that this is not an absolute right. A doctor may disclose confidential information with the explicit consent of the patient, if it is justified in the public interest, if the disclosure would be of overall benefit to a patient who lacks consent or if the disclosure is required by law.

Paragraph 17 of the new guidance indicates that you must disclose information if you are ordered to do so by a judge or presiding officer of the court.

Paragraphs 90 to 95 go on to explain that you should only disclose the information that is required by the court and that you should object if attempts are made to compel you to disclose information that appears to you to be irrelevant. 

In addition, if you think that disclosure of the information might put someone at risk of harm, the guidance says you should inform the judge. If you do not understand the basis for the order, you should ask the court or a legal adviser to explain it to you.

Tell the patient 

You also have a duty to tell the patient whose information is being requested what information you will disclose, unless this is not practicable or it would undermine the purpose of the disclosure or you feel that doing so might put yourself or others at risk of serious harm.

Prior to disclosing the information you should check the validity of the court order. Each page of the order should be signed by the judge or presiding officer and should contain a stamp. 

If you have concerns about the validity of the order, you can contact the court directly or seek advice from your medical defence organisation.

You should only disclose that information required by the court and you should document in the notes the reason for the disclosure and keep a copy of the court order for the records. 

You should, if possible, inform the patient of the information that you have disclosed unless it is not appropriate or practicable to do so.

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Request for notes prior to a claim

Dr Sissy Frank discusses what to do if a patient requests access to their records 

 

 

 

 

 

Dilemma 2

Do I give patient all his records?

Q I am a private gastro­enterologist who recently discharged a patient with non-specific abdominal pain. 

After a thorough investigation, I diagnosed irritable bowel syndrome and I provided the patient with lifestyle advice. He did not appear to be unhappy with this.

However, I have now received a letter from a solicitor with a signed form of authority from the patient requesting a copy of the complete records.  

They have indicated they are investigating a potential negligence claim against me. Do I have to comply,and do I have to provide all correspondence?  

I am concerned about providing a copy of my letter to the patient’s GP stating I could find nothing physically wrong and thought the patient’s symptoms might be a result of psychological issues. What should I do?  

A The solicitor’s letter is a request for records and is accompanied by a signed form of authority from the patient. 

In effect, this may be deemed a Subject Access Request (SAR) and is applicable to all doctors, UK businesses and organisations. 

Patients have a legal right to access the information you have stored about them and it can be requested for any purpose, including in contemplation of a claim. As a data controller, you cannot charge a patient or their legal representative for reasonable access to their records.

Bear in mind that you cannot exclude information on the basis you think it may be harmful to your position or simply because you think that it might upset the patient. 

Unless you have obtained their consent, you should redact information in relation to third parties, such as references to a relative of a patient who has raised concerns or provided information regarding the patient without the patient being present.  

This does not apply to information written by other healthcare professionals involved in treating the patient. In situations such as these, it is acceptable to redact the identification of the third party, as well as the data they have provided. 

Serious harm

It is also possible to redact information if you believe it is likely to cause serious harm to the physical or mental health of the patient or another individual, unless it is information of which the patient is already aware.  

Again, this is unlikely to be a common occurrence and your reasons for redacting information should be documented. 

It should not be used as justification to remove information that you think may annoy or upset the patient and may make them more likely to pursue a complaint or a claim.  

You only need to provide private records that are within your direct control. There is no obligation to obtain and provide records held by others; for example, NHS hospital records. These would be for the claimant’s solicitor to seek themselves from those organisations.  

As the solicitors have indicated that the patient wishes to bring a claim for compensation, it is advisable to inform your defence body as early as possible.

• See ‘Dealing with an aggressive client’