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Ask the expert: queries from members

19 July 2018

Dr James Lucas, medicolegal adviser at Medical Protection, answers some queries from members

One of our patients, diagnosed with a progressive neurological illness, has recently been made a ward of court. The patient’s son, appointed by the court to manage his affairs, has asked the practice for information about his father’s health. A GP from our practice has assessed the patient as lacking capacity to make a decision with regards to the disclosure. Is the patient’s son entitled to access his father’s confidential information?

The High Court judge making the wardship order normally makes a further order appointing a “committee of the ward”. The committee (which, despite the name, is usually one person and often a family member) may be given certain powers to make decisions (generally in connection with the property and money of the ward).1

The committee is expected to oversee the personal welfare of the ward from day to day. In addition, the registrar of the wards of court is entitled to require the committee to report at intervals on such issues as the ward’s “residence, physical and mental condition, maintenance, comfort and such other matters in relation to the Ward as he may wish to be informed of”.1

If the patient’s son is seeking information as a committee member, it would be reasonable for the practice to disclose relevant medical information, thus allowing him to fulfil his legal obligations. This is consistent with the Medical Council’s advice to doctors (see box 1).2  In this instance, the practice should ask the patient’s son to explain why the information is needed. The practice’s justification for any disclosure should then be recorded in the medical records.

“If the patient lacks capacity to give consent and is unlikely to regain capacity, you should consider making a disclosure if it is in the patient’s best interests.”

It is important to remember that the committee does not have unfettered rights of access to medical information pertaining to the patient (for example, historical information that is unrelated to the patient’s current condition).

The law in relation to capacity is set for change. Once the Assisted Decision-Making (Capacity) Act 2015 is fully implemented, each ward of court will be reviewed in accordance with the new system. A ward who is found to have capacity will be discharged from wardship. A ward who continues to have capacity needs will be discharged from wardship and offered the support option most appropriate to his or her needs.3

 

We installed CCTV in our car park following a review of security arrangements. A patient has asked the practice for a copy of video footage, showing him parking his car and entering the building. The patient says that another driver is contesting an insurance claim and he requires the CCTV footage to show that his car was undamaged when he entered our car park. Are we obliged to facilitate his request?

The Data Protection Commissioner (DPC) explains that recognisable images captured by CCTV systems are “personal data” and, therefore, subject to the provisions of the data protection legislation.4

Any person whose image is recorded on a CCTV system has a right to seek, and be supplied with, a copy of their own personal data from the footage.

The patient in this instance should be asked to provide the practice with a reasonable indication of the timeframe of the recording being sought. It would not suffice for the patient to make a very general request, saying that they want a copy of all CCTV footage held on them.

For the practice’s part, the obligation in responding to the access request is to provide a copy of the requester's personal information. The DPC explains that this normally involves providing a copy of the footage in video format. In circumstances where the footage is technically incapable of being copied to another device, or in other exceptional circumstances, it is acceptable to provide stills as an alternative to video footage. Where stills are supplied, it would be necessary to supply a still for every second of the recording in which the requester's image appears, in order to comply with the obligation to supply a copy of all personal data held. 

The DPC has also issued guidance that is relevant to practices dealing with requests for CCTV footage, which contain images of other parties (see below).

Images of third parties

The onus lies on the practice to pixelate, or otherwise redact or darken out, the images of those other parties before supplying a copy of the footage or stills from the footage to the requestor. Alternatively, the practice may seek the consent of those other parties whose images appear in the footage to release an unedited copy containing their images to the requester.

Learning point

Where a data controller chooses to use a CCTV system to capture and record images of living individuals, they are obliged to shoulder the data protection obligations that the law places on them.



 

  1. The Law reform Commission, Consultation Paper on Law and the Elderly, 2003.
  2. Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners, 8th Edition (2016), paragraph 30.2.
  3. Department of Justice and Equality, Assisted Decision-Making (Capacity) Act 2015: www.justice.ie
  4. Data Protection Commissioner, Data Protection and CCTV

     

     

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