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Reports for solicitors

John Smith has had a road traffic accident. He went to A&E where a neck sprain was diagnosed, and he saw an advertisement about compensation. A letter duly arrives from his solicitor, asking you to send Mr Smith's full medical record.

Dr Melanie Wynne-Jones discusses.

What should you look for on his consent form?

The consent itself should be signed by Mr Smith and dated fairly recently. If there is a long interval between the date of signature and the date of receipt, the question of whether the consent is still valid and/or covers other matters occurring after the date of the consent should be considered.

You may not necessarily recognise Mr Smith's signature, although you should be able to trust reputable solicitors acting for Mr Smith to comply with their professional code. If you have any doubts, check with Mr Smith personally.

You also need to check whose solicitor is requesting the records; if it is not Mr Smith's, check with him before releasing them to anyone else. You must, however, release the records if ordered to do so by a court.

Check also that the consent contains words similar to 'I confirm no action is intended against any members of the practice'. If they are missing it may be an oversight, but you do not want to release the records before taking legal advice yourself – ring your defence society or ask the solicitor to obtain appropriate revised consent.

Finally, is Mr Smith really happy to consent to all his records being released? Again, if you have any doubts, check first.

Why do solicitors want the full record anyway?

If someone is claiming compensation for a neck injury, the issue of whether they have had previous neck problems or other relevant conditions such as rheumatoid arthritis will obviously be relevant to the claim. A court may, for instance, consider that pre-existing conditions contribute, say, 50 per cent to Mr Smith's present disability; he will probably need to see a medical expert before the case who will find the previous records helpful.

A history of anxiety or depression may also be relevant if Mr Smith is claiming compensation for psychological distress or seems to be taking an unusually long time to recover. This may sound pejorative, but the judgment is the court's not the GP's.

Certain information must be withheld by law but whether anyone involved needs to know that Mr Smith has suffered from piles, child abuse or an STI is debatable. Again, check with Mr Smith if you foresee problems; solicitors will sometimes be happy to accept a declaration from the GP that unspecified withheld information is not relevant and need not be sent.

A third worry is that unscrupulous solicitors may trawl the notes looking for items with the potential for litigation against the practice or other doctors. This is unlikely but should be borne in mind when scrutinising notes.

What information must be withheld?

The release of medical records is governed by the Data Protection Act 19881. You must withhold any third-party information – for example where a patient has stated he was assaulted by his father, stress due to a son being investigated for cancer, a mother becoming demented, a brother who is alcoholic and so on – as these people have not consented to the release of this information (whether or not it is true).

In certain circumstances you may also withhold information that in your judgment might cause harm to the patient if it was revealed. This might include a diagnosis of cancer or dementia of which the patient was unaware, although these days most patients are fully informed anyway. There should be no inappropriate or abusive remarks about the patient in the record; if there are, you may need to speak to the doctor who made them, or your medical defence society.

Can I just send the records off?

No. It is unwise to send the originals as they will be unavailable to the practice for some time, and may get lost in the post; send photocopies.

Also, the entire record – GPs' notes, letters, computer record, any other bits of information stuffed into the Lloyd George envelope – must be scrutinised first to see whether anything should be withheld. Any such information should be clearly marked so it is not inadvertently copied and sent.

Can GPs charge a fee for this?

There is only a fee for 'reasonable photocopying costs' up to a maximum of £50, which is often inadequate in terms of staff time, consumables and postage if the records are large. Sensible practices invoice immediately (and make sure the cheque has arrived!) before sending the records.

Melanie Wynne-Jones is a GP in Marple, Cheshire

Resources

1 Data Protection Act 1998 www.hmso.gov.uk/acts/acts1998/19980029.htm#aofs

2 GMC: Confidentiality – Protecting and Providing

Information (2000)

www.gmc-uk.org/standards/default.htm

3 Medical Defence Union : Confidentialty (2001), booklet and downloadable pdf

www.the-mdu.com/associatedArticles/confid.pdf (members only)

4 Medical Protection Society: Consent – Complete Guide for GPs, The Data Protection Act Simplified, and Keeping Medical Records – Essential Guide for GPs www.medicalprotection.org/medical/united_kingdom/default.aspx

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