In line with the Medical Council’s Guide to Professional Conduct and Ethics, patients are entitled to receive a copy of their medical records, provided that this does not put theirhealth (or the health, safety or privacy of others) at risk.
This right of access is provided in the Data Protection Act 1988 and 2003 and the Freedom of Information Act 1997 (FOI Act). If a patient is treated privately, as in the case of Mrs B, the Data Protection Act applies. The Data Protection Act states that health data (personal data relating to physical or mental health) shall not be supplied to a data subject in response to an access request if it would be likely to cause serious harm to the physical or mental health of the data subject.
In this case, Mrs B wants to access her records with the aim of travelling to Switzerland to commit suicide. Dr M is therefore entitled to send Mrs B notification of a refusal of a request. This must be in writing and must include a statement clearly outlining the reasons for the refusal. Dr M must also make Mrs B aware that she may complain to the Data Protection Commissioner (the “Commissioner”) about the refusal.
If Mrs B does complain, and the Commissioner takes the view that Dr M is not complying with the Data Protection Act, he/she can serve Dr M a written notice, requiring him to comply with the access request and release Mrs B’s records. In this case, it would be an offence for Dr M not to comply with such a notice without reasonable excuse.
In the case of public patients, an application for disclosure would be made under the FOI Act. Whilst the doctor holds the patient’s notes, the HSE would be considered the “public body” under this legislation and the HSE is ultimately responsible for assessing a disclosure request under the FOI Act. A doctor should furnish the notes to the HSE, along with any comments. The HSE would then make the final decision regarding disclosure.
The FOI Act deals with a request relating to a record of a medical or psychiatric nature. If the public body concerned is of the opinion that disclosure of the information might prejudice the individual’s physical or mental health, well-being or emotional condition, the decision may be made to refuse to grant the request.
However, if the request is refused, the FOI Act provides for the releasing of such records to a health professional having expertise in relation to the subject matter of the record, as the patient may specify. This can mean that the information could be indirectly released to the patient.
If the FOI Office decides not to grant the request, the decision is firstly subject to internal review in the hospital. Subsequently, the decision can be reviewed by the FOI Commissioner. The decision of the FOI Commissioner is binding. However, there is a right of appeal to the High Court.