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GPs opting all patients out of automatic records access will not be in breach of contract

GPs opting all patients out of automatic records access will not be in breach of contract

GP practices that opt all of their patients out of automatic records access will not be breaching their contract, as long as they ‘manually offer access’ to each individual patient, NHS Digital has said.

All practices are set to have automatic access switched on by the end of the month, meaning that patients will be able to view anything added to their records from now on through the NHS App.

However, practices have been unsure whether they are able to opt all patients out for patient safety reasons. 

Under new guidance, NHS Digital has now said practices can apply an opt-out for all patients, but would have to make sure each patient is individually informed that they have a right to request access.

A ‘poster in the waiting room’ would for example not suffice. Furthermore, practices would need to agree any action with their local commissioner if they do opt all their patients out of automatic access. 

The BMA has advised practices to apply a SNOMED exclusion code to their entire patient list to block this from taking effect until sufficient safety checks are completed. 

The RCGP also advised GP practices to consider opting patients out of the programme on the grounds of patient safety. 

Meanwhile, NHS Digital guidance advised against a blanket application of SNOMED exclusion codes on the grounds that practices will then have to ‘manually review’ each patient to ‘meet their obligation to provide prospective access for all patients’.

This led some GPs to query whether continuing opt-outs beyond 30 November would put them in breach of contract. 

But separate NHS Digital guidance set out that GPs will not necessarily be in breach of their contract if they block patient access to their records via SNOMED codes beyond this month. 

It said that the ‘obligation’ for practices to offer access to prospective records is set out in Part 10 Z1ZA of the GMS contract regulations. 

The regulations state: ‘The contractor must, if its computerised clinical systems and redaction software allow, offer to [the patient] the facility to access online the information (other than any excepted information) entered onto [the patient’s] medical record on or after the relevant date (the “prospective medical record”).’ 

Since the functionality is now available in EMIS and TPP GP systems, practices using these systems are contractually required to ‘offer all patients access to their prospective records’, NHS Digital said. 

It added that while ‘how the offer is made is not prescribed, communication must be effective so that it is made to all registered patients’. 

Therefore it is ‘not appropriate to wait for patients to request access or only make an offer to a subset of patients, for example by placing a poster in a waiting area, as the offer will not have been made to everyone’, it said. 

The guidance added that while automatic access is not a contractual requirement, practices disabling the functionality for either their entire practice list or a group of patients are ‘required to manually offer access to those affected patients’. 

They should also ‘agree a plan with their local commissioner’, it said. Pulse asked NHS England – which is leading the project – to clarify the contractual position, but it declined to comment further. 

The guidance added that the GP contract regulations also state that a practice may ‘delay’ providing access to patients if it considers that doing so ‘is likely to have an adverse impact on its provision of essential services’. 

NHS Digital said that practices ‘can therefore delay provision of prospective records if its provision is likely to impact the provision of essential services, as set out in regulation 17 of the GMS Regulations’. 

But it said that if this is the case, practices would be expected to approach their commissioner for support and are required to inform affected patients of the decision and how long the practice ‘anticipates access will be delayed’. 

In addition to prospective records access, practices are also required to promote and offer access to information ‘held in the coded form’ and the entire historic record upon written request, NHS Digital said. 

GPs have also raised concerns about whether they are contractually required to respond to patient queries related to their records, such as patients asking for clarity on an abbreviation or wanting their GP to correct details about their history. 

NHS Digital said that there is a ‘professional responsibility for healthcare staff to ensure that patients understand the care they receive’. 

It added that additional information is provided on the NHS website ‘to support patients to fully benefit from access to their health information, including a list of common abbreviations’.



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

Christopher Ives 10 November, 2022 12:40 pm

‘can therefore delay provision of prospective records if its provision is likely to impact the provision of essential services, as set out in regulation 17 of the GMS Regulations’.

So we won’t be offering for a while or at least until the GMS contract is renegotiated.

Richard Greenway 10 November, 2022 1:02 pm

This is the wording of the act:

“The contractor must, if its computerised clinical systems AND REDACTION SOFTWARE ALLOW offer to P the facility….
Definition of recaction “the censoring or obscuring of PART of a text for legal or security purposes”

EMIS doesn’t have proper redaction software -only a method of hiding online view of a whole consultation (not just the chosen parts that we don’t want to appear).
If this wasn’t the case we would all have been in breach since 2019.

Christopher Ives 10 November, 2022 2:11 pm

Yes I agree with that interpretation as well. I don’t think we have functioning redaction software. Just a basic way of hiding consultations from online access

Finola ONeill 10 November, 2022 10:26 pm

Look the basic principles of Gdpr are fairness and transparency. Ie information shared as patient would reasonably expect. This automatic upload involves sharing with over 80 companies that use/collaborate with the nhs app, this isn’t what the patient would reasonably expect so it doesn’t meet gdpr principle or it seems unlawful. Logically this data upload should be opt in not opt out. The upload involves risk to the patient and if they don’t intent/want to view their record it is risk without tangible benefit. Unacceptable BS from nhse as always. And GP as data controller takes the risk. That’s the legal risk let’s not even talk about professional compromise. Opt out all your patients. Text them all and ask them to opt in if they want to access their records. And get a statement from nhs digital as to who shares the info on the app and what the risks are to inform the patient. Informed consent. You know. That thing we were all trained about, bedrock of our practice, Montgomery, tie legal standard we are now held at.