Should GPs have to get third party consent for sight of records?
When the issue of third party consent and medical records was raised in Pulse, the floodgates opened – Jo Carlowe explores the issues and gets some experts' views
'I do not
feel I should
be doing the
for them,' wrote one irate GP. Similar
comments soon followed. The GPs were responding to suggestions in Pulse (April 12, page 38) from an LMC expert that doctors should seek direct consent from patients in addition to the consent forwarded by the solicitor. Some GPs felt this was necessary because they fear patients sign solicitors' forms without understanding the implications.
Legal experts say GPs do not have a legal obligation to duplicate a solicitor's consent. 'Direct consent is generally not necessary,' says Medical Defence Union medicolegal adviser Dr Matthew Lee. 'You are giving the records to the patient's own advocate and, as professionals, solicitors are obliged to act in the best interest of their clients.'
But some doctors feel they have a moral obligation to do so. 'Confidentiality is one of the cornerstones of the doctor/patient relationship. It is in the best interest of all parties that the patient is clear and informed about what information they are consenting to disclose,' says the BMA's ethics committee.
Essentially, the problem is one of trust – not between doctors and patients, but between GPs and solicitors. If a GP feels confident that the lawyer has explained everything to their client, there is no need for the doctor to duplicate consent.
'The problem is GPs have limited time to vet requests,' says Dr Peter Gooderham, law tutor at the University of Cardiff and a former GP. 'Problems arise when solicitors try to cut corners and ask for release of records without observing correct written procedures. A frequent problem is verbal requests originating from solicitors who should know better.'
Dr Stephanie Bown of the Medical Protection Society believes GPs should be 'entitled to accept the professionalism of another profession', but acknowledges: 'In practice they may have concerns that some patients have not fully understood the consequences of signing the consent form.'
In July last year the BMA worked together with the Law Society on a 'model' consent form for use by solicitors, spelling out to patients exactly how their records might be used. Since the introduction of this form, the Law Society says it has received no complaints about third-party consent.
But the form is not compulsory. Tim Annett, associate at Alexander Harris, legal experts in health care litigation, says the form was not well publicised.
'We use something similar but there are solicitors who don't use the BMA's recommended form because they don't know about it,' he said.
Where the best-practice form is used GPs can feel reassured. Where the GP has doubts, they should double-check consent with the patient. A failure to act on such doubts could lead to the GP being criticised, says Dr Bown, although she is not aware of any precedent.
GPs should also check that consent forms are current. Dr Bown says she can envisage a situation in which a patient has consented to the release of his records for a divorce settlement, only for the consent form to be reinstated several years later during an accident claim.
'In such a case, the patient could make a complaint to the GMC, although it would not necessarily be upheld,' she says. Once again there is no precedent.
Another potential pitfall exists with children's medical records. When disclosing records the GP should establish with the solicitor that the person who has signed the consent form does indeed have 'parental responsibility'. The father is considered to have 'parental responsibility' if he is registered on the birth certificate from December 2003 onwards or if he was married to the child's mother at the time of the child's birth.
'You cannot assume that a person has parental responsibility,' she says. 'If they proved not to, the disclosure of information would be in breach of common law of confidentiality and the Data Protection Act. You could also end up before the GMC.'
Similarly, if the police turn up asking for details about a patient's registration this cannot be disclosed without the patient's consent. Requests by social services for patients' records are similarly controlled and GPs should not release records without viewing the patient's written consent. Exceptions exist where disclosures are in the public interest to prevent death or harm.
The BMA has also worked closely with the Association of British Insurers. Last October the two organisations drew up a new consent form spelling out what information would be released and specifying that HIV results and genetic testing should not be included.
The BMA has worked hard on the issue of consent to third parties. The introduction of best-practice forms should allow GPs to feel more relaxed about trusting allied professionals to do their jobs properly and save them the time and worry of having to duplicate work.
But if in doubt, GPC negotiator Dr Hamish Meldrum says GPs should apply the 'Bolam test' – looking at what could reasonably be expected of GPs in the same situation.
'It is about exercising judgment,' he says. 'As GPs we do that all the time.'
4CDB8A?OpenDocument&PreviewStyle=524BD1D1E1C3476A80256E16004A7AE7 – link to BMA/Law Society consent form
• www.abi.org.uk – The Association of British Insurers