Business Dilemmas

Dr Kathryn Leask explains what to do when you receive an unusual Subject Access Request

 

 

 

 

 

Dilemma 1

Must I hand over records to him?

Q I am a consultant paediatrician and have been contacted by the stepfather of a five-year-old patient. 

He made a Subject Access Request (SAR) for information asking for any documentation that relates to him – for example, records of phone conversations he’d had with me and my secretary and emails he had sent in. 

I understand that there is a dispute between him and the child’s mother and she is accusing him of contacting me and providing false information about the child’s mental health. He is trying to prove no such records exist. 

I explained I could not provide information due to my duty of confidentiality to my patient, but he is insisting I provide this information, as it is about him, not the patient. 

Do I have to help him?

A I wasn’t sure how to respond to this request. I have established that he doesn’t have parental responsibility for the child.

While the stepfather isn’t asking for information about patients under your care, I assume that, for you to establish whether there has been any contact between him and you or your secretary, it would require access to the child’s records as, presumably, this would be where the information would be stored. 

 

The information would not be stored under the stepfather’s name directly, as he is not your patient. Therefore, although he is not asking for information about patients, what you would need to do is access the records without the consent of someone with parental responsibility for the child, such as the mother, and without a clinical reason to do so. 

What he is asking for does, therefore, have an impact on your patient.

Conduct searches

The Data Protection regulations do expect you to have done a reasonable search where a SAR is made. 

It may be possible for you to see whether any calls have been made between the stepfather’s mobile/landline number and your professional number or whether you or your secretary have received/sent any emails for the stepfather’s email address. 

This could be done without the need to access the patient’s records. You are not required to conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information.

You may wish to contact the stepfather again and explain to him that, as he is not your patient, you do not hold information about him in a relevant filing system that would easily identify him. 

No consent

You can explain that when a third party gets in touch with you about a patient, the information they provide will be stored in the patient’s record and not under the informant’s name. 

His request, therefore, would involve looking in the record of his stepchild when there is no clinical indication to access that record and, presumably, no consent from a person with parental responsibility.

You could offer to look at the relevant phone logs, if he could provide you with the phone number he would have made any calls from, and the sent and received emails to see whether there are any between you. 

I assume you wouldn’t be able to identify any physical letters that may have been hand-delivered or posted, as these would have been scanned into the child’s records and the original destroyed.

If you decide that you cannot comply with his SAR, you should explain the reasons why and let them know that they have the right to make a complaint to the Information Commissioner’s Office or seek to enforce their rights through the courts.

Another option would be for the mother to provide consent to allow you to access the child’s records to look for the information. The stepfather would also have to agree to this, as you would be disclosing information about him to the mother, as to whether he had been in touch or not.

Finally, you could explain that while you don’t know what the background to the request is, the stepfather and mother could attend the practice together to look at the notes.

If you have a Data Protection Officer, you may also wish to discuss this request with them.

---

Acting as a Samaritan when retired

What are the implications of acting as a Good Samaritan following retirement? Dr Kathryn Leask advises

 

 

 

 

 

Dilemma 2

How long do I retain records?

Q I am due to retire from both my private and NHS work as a consultant cardiologist. What I am trying to decide is whether to remain registered with the GMC after relinquishing my licence to practise. 

One consideration is whether I would still be indemnified for Good Samaritan Acts should I be involved in an emergency. 

I understand that doctors need to be registered with the GMC to be a member of a medico-legal organisation.

What legal protection will I have if I am no longer on the register?

A Paragraph 26 of Good Medical Practice states that while you are still on the GMC’s list of registered medical practitioners you have a professional obligation to offer help if an emergency arises in the community, taking into account your own safety, your competence and the availability of other options. 

The GMC also says you must recognise and act within the limits of your competence when providing care to a patient at paragraph 14 of the same guidance. 

Once you are no longer on the GMC register, you are not bound by its guidance, but I imagine you would still want to assist in an emergency if you were able. Again, what assistance you provide will depend on your own competence and what other options exist.

With the MDU, members are entitled to seek assistance in relation to their involvement in a Good Samaritan Act anywhere in the world and this includes non-paying members such as those who are retired members and are no longer registered with the GMC. 

This is assuming they have retired from membership rather than resigned. Good Samaritan Acts occur when assistance is offered when the doctor is a bystander and would not include organised events – for example, if you volunteered for a charity or sports even.

In England and Wales, the Social Action, Responsibility and Heroism (SARAH) Act 2015 applies to someone who is present at an incident as a bystander and steps in to help. 

If a claim for negligence is later brought against the Good Samaritan, courts in England and Wales must take into account whether the person acted for the ‘benefit of society’ and took a ‘predominantly responsible approach’ in protecting other people.

Dr Kathryn Leask is a medico-legal adviser at the Medical Defence Union 

• See ‘Keeping records after retirement’