ACCESS TO MEDICAL RECORDS. By Felicia Jolaoye Blavo & Co Solicitors Ltd.

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1 ACCESS TO MEDICAL RECORDS.

2 Dorset Healthcare NHS Foundation Trust v MH (2009) : A full disclosure of all relevant material should generally be given and should not present a problem in the vast majority of cases. The burden will be on the responsible authority to demonstrate that it is appropriate to withhold disclosure of any particular documents.

3 Rule 14 -Tribunal Procedure Rules 2008 Code of Practice Mental Health Act 1983 Paragraph 1 - enables the Tribunal to make an order prohibiting the disclosure or publication of a) specified documents or information relating to the proceedings; or b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified. Paragraph 2 states that an order prohibiting disclosure can only be made if the tribunal is satisfied that the disclosure would be likely to cause serious harm to that person or another and that it is proportionate to make such an order in the interest of justice.

4 Rule 14 -Tribunal Procedure Rules 2008 Code of Practice Mental Health Act 1983 Paragraph 3 - if a party considers that the Tribunal should give a direction prohibiting the disclosure of a document or information to another party, the first party must: a) exclude the relevant document or information from any document or information from any documents that will be provided to the second party and b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph 2.

5 Reasons for requesting the tribunal to exclude a document or information must be provided: Paragraph 5 - Tribunal may give a direction that information be disclosed to a patient's representative if satisfied that the i) disclosure to the representative would be in the interests of the party and ii) the representative will act in accordance with Paragraph 6. Paragraph 6 - documents disclosed to a representative must not be disclosed to any other person without the Tribunal's consent.

6 Reasons for requesting the tribunal to exclude a document or information must be provided: Paragraph 6 continued Where a responsible authority seeks to avoid disclosure to the patient's representative, it should submit a skeleton argument setting out the reasons for non disclosure and specify the document in question. The skeleton argument should be served on the patient's solicitor's to give them an opportunity to respond in writing. An application to the Tribunal will be necessary where the exchange of skeleton argument does not resolve the issue.

7 Paragraph 6 continued In most instances an application should be determined by the Tribunal on the day of the substantive hearing. In exceptional cases, it would be appropriate for the matter to be considered and determined by a single judge in advance of the substantive hearing. If the Tribunal agree to non-disclosure and the other party wishes to appeal against the decision the Tribunal should provide brief reasons for their decision. The time limit for appealing the decision on a point of law is determined by the date when the Tribunal's reasons is sent.

8 Human Right Act 1998 & Case Law Article 8: patient's right to respect for his private life will be interfered with if a tribunal decides not to disclose a document of information to the patient. RM v St Andrews Healthcare (2010) when considering the interest of justice test rule 14(2) the key test to apply is whether or not non disclosure of the document or information would allow the patient to make an effective challenge to his detention.

9 Data Protection Act (DPA) 1998 The Data Protection Act 1998 provides patients with a right of access to their medical records. The patient s representative should obtain the written authority of the patient to apply for such access. The DPA, outlines the basic rights of data subject, methods in which data may be handled by those who possess it, special exemptions and modes of enforcement.

10 Data Protection Act (DPA) 1998 The 8 fundamental principles of DPA 1998 specify that personal data must: be processed fairly and lawfully be obtained only for lawful purposes and not processed in any manner incompatible with those purposes be adequate, relevant and not excessive be accurate and current not be retained for longer than necessary be processed in accordance with the rights and freedoms of data subjects

11 Data Protection Act (DPA) 1998 continued be protected against unauthorized or unlawful processing and against accidental loss, destruction or damage. not be transferred to a country or territory outside the European Economic Area unless that country or territory protects the rights and freedoms of the data subjects.

12 Definitions Part 1 (DPA) 1998 Data Information which being processed by means of equipment in response to instructions given for that purpose are recorded with the intention that it should be processed and recorded as part of a relevant filing system Data Controller (Mental Health Act Administrator on behalf of the hospital) Person who either jointly or alone or in common with other persons determines the purposes for which and the manner in which any personal data are or are to be processed.

13 Definitions Part 1 (DPA) 1998 Continued Data Subject Client Individual who is the subject of the personal data. Personal Data Data and other information which is in the possession of or likely to come into the possession of the data controller. It includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other persons in respect of the individual.

14 Definitions Part 1 (DPA) 1998 Continued Processing Obtaining, recording or holding the information or data or carrying out any operation or set of operations in the information or data including disclosure of the information or data by transmission, dissemination or otherwise making available.

15 SCHEDULE 1 (DPA) 1998 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

16 SCHEDULE 2 (DPA) 1998 Conditions relevant for purposes of processing of any personal data 1. The data subject has given his consent to the processing. 2. The processing is necessary (a) for the performance of a contract to which the data subject is a party, or (b) for the taking of steps at the request of the data subject with a view to entering into a contract.

17 SCHEDULE 2 (DPA) 1998 Continued 3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. 4. The processing is necessary in order to protect the vital interests of the data subject.

18 Part II Section 7(DPA 1998) Right of the Data Subject This section gives the data subject the right to be informed by the data controller whether personal data about them are being processed by or on behalf of the data controller and to have access to personal data which the individual is the subject

19 Part II Section 7(DPA 1998) Supply of Information Section 7(2) The data controller is not obliged to supply any information under subsection 1 unless he has received - A request in writing, and Such fee as he may require (not exceeding the prescribed maximum). 3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

20 Fee Inpatients are not required top pay to be allowed access into their medical records For other patients who are not detained in hospital they are required to pay between (maximum payment) Note: Hospitals have different policies. In NHS hospitals, inpatients are not required to pay a fee to gain access to their records. However, in private hospitals patients may be asked to pay to be allowed access to their medical records. The fee must not exceed the maximum.

21 Disclosure of Information A data controller shall comply with a request made promptly and in any event before the end of the prescribed period beginning with the relevant day. Prescribed Period = Forty days Relevant Day = means the day on which the data controller receives the request or if later, then the first day on which the data controller has both the required fee and the information referred to in subsection 3

22 Exemption to the Non Disclosure Rule: Part IV Section 35 (DPA) 1998 Disclosures required by law or made in connection with legal proceedings (1) personal data are exempt from the nondisclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

23 Exemption to the Non Disclosure Rule: Part IV Section 35 (DPA) 1998 (2) personal data are exempt from the nondisclosure provisions where the disclosure is necessary (a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or (b)for the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.