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BMA preparing legal challenge over imposed patient record sharing

BMA preparing legal challenge over imposed patient record sharing

The BMA’s GP Committee for England is considering a legal challenge over an imposed contractual requirement to offer patients access to prospective records.

NHS England has told practices they will need to offer automatic access to prospective records via the NHS App by 31 October, following several delays, but GPCE said it still has ‘reservations’ surrounding the imposed rollout.

In new guidance, published last week, GPCE said: ‘Given our current and ongoing concerns we are taking further legal advice and challenging the way this project is being rolled out in the contract imposition we have faced. We will provide more information on this challenge in the coming months.’

However, despite this the BMA said it wants to ‘help practices in order that they don’t fall foul of their contractual requirements’ and has therefore prepared guidance ‘to address common questions, key deadlines and practical considerations to extending online access’.

It also stressed that ‘GPCE continues to support the policy of extending access to patients’ online records in principle’ but is ‘clear that any risk to patient safety or practice stability is unacceptable and must be mitigated as far as is reasonably possible’.

‘You are not obliged to roll this out to all your patients at the present time and we would ask you to consider a slower process in the coming months’, it added.

The guidance said that once patients get instant access to all new information on their record, ‘practices should expect to field more queries related to what patients see on their records, either to rectify incorrect information or to better understand that information’.

In response, practices should ‘ensure that they are recording information in a way that a patient can readily understand and which does not cause offence’.

The guidance also stressed practices can redact entire consultations and documents, although GPCE continues to believe redaction tools ‘are not fit for purpose’ and they ‘are trying to rectify this’.

‘This has been one of the significant aspects of concern we have and we are pushing back firmly on this, particularly in the current legal challenge to government,’ it said.

‘We wish to seek solutions and make this project work and we hope government will meaningfully engage with us on this.’

What is the contractual obligation?

To provide prospective record access to coded information (including results), documents and free text for all their patients by 31 October 2023 at the latest.

The only exception is when a patient has expressly requested that access not be given.

The contract also states prospective access must be given to new patients on registration unless they decline that access.

Source: BMA

Patients were initially set to be given automatic access to their prospective patient records through the NHS app from 1 November last year – starting with EMIS and TPP, and with other smaller suppliers to follow at a later date.

But in October last year, suppliers confirmed they would not yet switch on automatic patient access to their records via the NHS app due to safeguarding concerns. SystmOne practices saw the functionality turned on in February although some practices were doing bulk opt-outs of their patients.

At the time, Pulse revealed that GP practices that were doing so had been asked to report to NHS England and ICBs. Practices which have used the 104 codes – showing the message ‘enhanced review indicated before granting access to your own health record’ – to large parts of their patient population were asked for plans on how access was going to be given moving forward.

However, the new guidance makes it clear that there is no contractual obligation to remove the codes urgently.

It said: ‘The batch coding (with “104” codes) was designed to work hand in hand with this new functionality to prevent automatic access to a given patient, should that functionality have been turned on.

‘Access can be given to patients manually regardless of whether a “104” code is in the record and the new functionality does not need to be turned on to provide access.’

BMA ‘key steps’ advice to practices:

In order to prepare for 31 October 2023, practices should consider the following:

  • Ensure all practice staff are aware of the upcoming changes and have sufficient training to respond to any queries arising from patients. Extensive information is available in the RCGP Toolkit
  • Promote the NHS app on your website – NHS Digital provides information you can use for patients
  • Explain what online access to records means for your patients – NHS Digital provides resources to communicate with patients
  • Determine if, as a practice, you wish to seek consent from each patient prior to granting access, and if so, determine a road map to ensure all patients who do not yet have access are consulted prior to the end of October. For anyone that had previously been given the ‘104’ SNOMED code and who is, therefore, thought to be at a higher risk of harm this step will be necessary. The only exception to not giving prospective access is if the patient asks not to have it. This will necessitate a conversation with the patient.
  • Practices who opted out of the November 2022 accelerated access programme functionality (which provided access at go live, when someone over 16 years old created an NHS login, or when a 15-year-old with an NHS login turned 16), by writing to system suppliers in 2022, will need to decide if they want to turn on this functionality, or grant access manually, to patients in the coming months. The new functionality does not deal with anyone with the ‘104’ code applied, and these will all need to be dealt with manually before the end of October and access given or dissent documented.

Source: BMA



Please note, only GPs are permitted to add comments to articles

Amir Hannan 30 May, 2023 5:43 pm

I am really pleased the BMA is preparing a legal challenge over imposed record sharing, For those who want to know why I support this, please watch this video of me talking at the BMA National LMC conference spelling out to the delegates there and online why it is unsafe to promote let alone impose in a GP contract prospective access to the GP electronic health records without adequate consent in place

Osman Bhatti 30 May, 2023 7:43 pm

I did a webinar on this today and also recommended that we prepare with a practice and patient process but to enable on patient request rather than global access that carries a considerable risk overall.

Some Bloke 31 May, 2023 1:56 pm

I haven’t done a webinar or attended a conference.
But I don’t want to do all the work that’s involved. Busy as it is.
Also, if it is logical to say that not all patients want or can safely cope with full access, then it as a matter of principle and logic, it should be an opt in, not opt out.

Osman Bhatti 31 May, 2023 10:33 pm

Exactly this – it should be an opt in process and not an opt out.
If patients want access then they can request it and the practices as data controllers can provide the information.