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Consent to solicitor's request

We always assumed the consent forwarded by a solicitor when requesting copies of the medical records was adequate, but at a recent training day we were advised to write to patients informing them of the extent of the records being requested and seeking direct consent before complying. Is this duplication necessary?

The advice you were given is quite correct since a signature on a piece of paper does not necessarily signify legally valid consent. The key criteria in any consent situation are that the patient:

lis legally competent to consent

lhas been fully informed of what they are consenting to

lis aware of the potential consequences of consenting

lis capable of understanding all the information given

lis consenting entirely voluntarily.

You may wish to write to the patient to clarify whether the consent is adequate or you may be happy to check this verbally, rather than resorting to additional correspondence. Explicit consent does not have to be written but for legal reasons you should document the process briefly in the notes. It is a matter of judgment whether or not you feel written confirmation is essential.

All doctors have a professional obligation to act in the patient's best interests at all times. When a solicitor is acting for the patient, he or she also has a duty to act in the patient's best interests. The risks of the information being used to the detriment of the patient should therefore be minimal, but it is always better from the viewpoint of patient and doctor to be absolutely certain. It is also legally and ethically the correct approach.

The patient is entitled to a copy of their records under the Data Protection Act and releasing the data to the patient, rather than to a third party, is a reasonable way of ensuring you do not make any unauthorised disclosure.

Dr Christine Dewbury, Wessex LMCs

Neither Pulse nor Wessex LMCs can accept any legal liability in respect of the answers given. Readers should seek independent advice before acting on the information concerned.

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