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.’

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.’