In our latest article, Ann-Marie Christie, MAPS’ in-house solicitor, explores the legal and practical challenges of obtaining and sharing medical records in medico-legal cases. Drawing on key regulations and procedural considerations, it examines the rights of applicants, common barriers to access and emerging solutions, including MAPS’ secure portal platform.
Medical records are fundamental to any medical expert carrying out medico-legal work in personal injury and clinical negligence cases. They form the backbone of any medical report and often determine whether an expert can support a causal link between an accident/event and the injuries sustained.
Obtaining a patient’s medical records is not always straightforward. One of the most common complaints from medical experts is the delays they encounter when waiting for medical records, usually followed by the organisation of the medical records they receive and now, in the days of electronic storage, being able to open the records without any difficulties. It is useful to bear in mind some of the special circumstances that an applicant can encounter when applying for records, and look at how we at MAPS are working with a new portal platform for sharing medical records with our medical experts.
The Regulations
Under the Data Protection Act (DPA) 2018 and General Data Protection Regulation (GDPR) individuals have a legal right to apply for access to health information held about them. This is a “Subject Access Request”. It includes NHS or private health records held by GPs, opticians, dentists, or hospitals. Generally, records should be provided within 30 days, though in our experience, providers often fail to meet this deadline.
Specialist situations
Primary Care Support England (PCSE)
PCSE is delivered by Capita on behalf of NHS England to provide digital, logistical support to every GP, dentist, optician and pharmacist providing NHS services in England and other stakeholders who use PCSE Online. They use a national courier network for transporting paper patient GP records around the country while also being tracked via PCSE Online.
Most patient records are now held electronically and transferred between GPs via an electronic GP2GP file. PCSE is responsible for the transfer of paper records only. Where a patient is not registered with a GP or is deceased, their records go into physical central storage if the GP practice is closed. If a GP contacts PCSE to say someone’s medical records are incomplete, they will contact central storage to check and contact the last known controller to see if the missing portion can be located.
Records held for deceased patients
PCSE will only process requests for deceased individuals whose last registered GP practices have closed. If the GP practice remains open, then in the first instance, the applicant would need to make a request to their last registered practice.
In order to access a deceased patient’s records, the applicant would need to have proof from the deceased’s personal representative – usually the Executor of someone’s estate if they left a Will or an Administrator appointed by the Court where there is no Will.
Some Trusts will accept a copy of the Will if a Grant of Probate has not been issued, while others require the Grant of Probate along with a consent form signed by the Executor. The process of obtaining a Grant of Probate can take some time – the current timescale given by the Probate Registry is anything between 12 and 16 weeks at a minimum – see here. This can obviously delay any medical expert instructions when it is necessary for the expert to review the deceased’s medical records, as the Trust or GP will not release them without sight of the Grant of Probate.
Ministry of Defence
The Ministry of Defence (MOD) is currently in the process of transferring approximately 9.7 million Service records to The National Archives. The transfer is expected to be completed in 2027. The storage location depends on the type of record. For personal injury and clinical negligence claims, personnel and occupational health records are typically required. The Government guidance is that any paper records held by units should be forwarded to the archives within 5 years of their closure, unless the unit has identified an ongoing administrative need to retain the records locally. These types of records often need to be requested from the MOD’s solicitors.
Records held abroad
Obtaining medical records from abroad is not straightforward, as each jurisdiction tends to have its own requirements. A number of European countries require Powers of Attorney to be completed, notarised and apostilled before an applicant can apply for the records. The solicitors can do this directly or use agents in the relevant country to overcome language barriers.
Some countries will insist that the injured party apply for the records themselves and then forward them to their solicitors. Certain countries, such as Germany, may not release full records but instead provide a summary report from a lead clinician detailing reported injuries and treatments received.
Once the records are received, they will likely need to be translated before being sent to the medical expert preparing the report. If the records are not forthcoming, the solicitor will have to decide whether the case can proceed without them or consider making an application through the local court in the applicable country, if permitted. However, this process is generally expensive and time-consuming.
Complaints to the Information Commissioner (ICO)
If a provider fails to provide the requested records within the appropriate time limit, then it may be necessary to make a formal complaint to the ICO. However, the ICO recommends first raising a formal complaint with the Trust, GP or other provider. If the applicant believes information is missing from the response, they should clearly specify what is missing to help the organisation review their records. Once that has been done and, if the response remains unsatisfactory, a complaint should be made to the ICO within three months of the last meaningful contact with the organisation.
The ICO can punish an organisation for breaking the law, but they only use this power in the most serious of cases. They can also offer advice to the provider to see if the problem can be resolved.
Formal application through the courts
An application for third party disclosure can be made through the courts if the records are not provided. A judge will review the application and list the matter for a hearing to determine whether a formal Order should be made for the provider to comply with. Again, this can be a costly and time-consuming process, so the solicitor must weigh up whether the records (if provided) will make a material difference to the case and the medical expert reviewing them.
New portal platform for sharing records
We are always striving to improve the way medical records are shared with our experts. We recognise that opening, downloading and reviewing medical records can be labour-intensive for a medical expert, especially when dealing with the frustration of different password policies for individual Trusts and GPs, rather than having a uniform approach across the NHS. This, of course, means that problems can arise when accessing and viewing medical records, even in the regular cases that do not involve the special circumstances set out in this article.
We are in the process of trialling a secure platform, enabling MAPS and our law firm customers to share medical records (and reports if they need to be shared) with our experts. The experts are sent an invitation to a folder where they can view and download the records. Images are shared in a format that allows them to be viewed without the need for downloading any other application.
Experts should be wary about including screenshots of radiology images in their reports, as often the copying or screenshotting can degrade image quality, making them unreliable for diagnostic purposes. Obviously, when possible, experts should refer to the original images instead.
Conclusion
Getting medical records should be a straightforward process but is often more challenging than you may think. Hopefully, this article will give you some insight into the various issues an applicant may encounter when obtaining medical records, as well as the challenges we all face with evolving technology.