Excessive costs of acessing health records

DESPITE the presence of statutory regulation of the fees to be charged for access to medical records, the medical and legal professions continue to find themselves in conflict over fees. Prior to proceedings being raised in a personal injury claim, access to a client’s medical records is often obtained by having the client sign a form of authority which is then sent to the client’s GP or hospital where he was treated. A copy of the records is offered/provided to the solicitor along with a fee for providing the copy records.

At this stage, however, disputes arise as to the cost of supplying the copy records. The solicitor may not have considered the basis on which he was seeking access to his client’s records, and may be surprised by the level of charges being imposed by various GPs and Health Trusts. An area which causes more problems than most is the cost of copying x-rays and if there are a number of films the charges which are proposed can be substantial. Charges of up to £20 for a copy of a single x-ray are not uncommon.

Solicitors should be aware of the relevant statutory provisions to ensure that they are getting what they are entitled to, and further they/their client are not being overcharged.

The Data Protection Act 1984 gave individuals a right of access to automated records - principally records held on computer. The Access to Health Records Act 1990 then gave individuals a right of access to manual health records - i.e. to the sort of non-automated records that the Data Protection Act 1984 did not apply to.

The Data Protection Act 1984 has now been repealed by The Data Protection Act 1998. This was implemented on 1 March 2000. Although there are periods of transitional relief during which certain provisions of the new legislation need not be complied with, the implementation of the new legislation has had an immediate impact in respect of subject access to health records.

The Access to Health Records Act 1990 has now been largely repealed except for the sections dealing with requests for access to records relating to the deceased. Requests for access to records relating to the deceased will continue to be made under the Access to Health Records Act 1990. However, requests for access to health records relating to living individuals, whether the records are manual or automated, will now fall within the scope of the Data Protection Act 1998’s subject access provisions and must be dealt with in the manner stipulated in that Act.

The Data Protection Act 1998 has the principle of “subject access”. This right allows the individual to gain access to personal data of which he is the subject. Typically this will involve supplying an individual with copies of records relating to him when asked to do so. For general information about the right of subject access and the transitional provisions referred to above see ‘The Data Protection Act 1998 - An Introduction’1.

What “Health Records” are recoverable in terms of the Act?

<>A ‘health record’ is defined in section 68 of the 1998 Act as being any record which “(a) consists of information relating to the physical or mental health or condition of an individual, and has been made by or on behalf of a health professional in connection with the care of that individual.” (for a full definition of a “health professional” see section 69 of the 1998 Act2.) The definition of a ‘health record’ could apply to material held on an X-ray or an MRI scan, for example. This means that when a subject access request is made, the information contained in such material must be supplied to the applicant within the fee structure described below.

It is clear, therefore, that many of the records being held by NHS Trusts, surgeries and other health care institutions will constitute ‘health records’ and will therefore fall within the scope of the 1998 Act’s subject access provisions. It should be recognised that the Act can also be used against employers to obtain occupational heath records, as these presumably will have been created by a “health professional”.

Further, the NHS Executive have previously confirmed that the 1990 Act applied to requests for ambulance records and notes. At the moment there may be some doubt as to whether the 1998 Act covers these records. The ambulance crew member may not be a “health professional”, and strictly speaking the records may not have been made on behalf of a “health professional”. Once, however, the notes become part of the health records they would presumably fall within the scope of the Act by virtue of being subject to automated processing, or by the information contained within them being recorded as part of a relevant filing system.

How much can be charged for granting subject access?

Details of the fees which can be charged are contained in The Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000.

A distinction must be drawn between a request for access and a request for copy records. In certain circumstances no charge can be levied where an individual (or more likely an expert instructed on his behalf) seeks access to his records. No fee may be charged where the subject access request is to be complied with other than by supplying a copy of the information in a permanent form - i.e. by allowing the applicant to inspect the record. This provision only relates to requests for access to non- automated records at least some of which were made after the beginning of the period of 40 days immediately preceding the date of the request. This provision broadly replicates the provision of the Access to Health Records Act 1990 that, in effect, allows patients to look at recently created records for free. Where, however, the individual seeks a copy of his records the position is as follows

• A maximum fee of £10 may be charged for granting subject access to health records that are being automatically processed, or that are recorded with the intention that they be so processed. In effect, this means that only £10 may be charged for granting access to the sort of records that the Data Protection Act 1984 applied to.
• A maximum fee of £50 may be charged for granting subject access to manual records, or to a mixture of manual and automated records, where the request for subject access will be granted by supplying a copy of the information in permanent form. However, for this provision to apply the request must be made prior to 24 October 2001. After that time only the £10 maximum fee may be charged.

It should be noted that there is no express provision for any fee to be charged for copying or despatching copies of records. However, the £50 chargeable fee will allow for some of the costs incurred by granting subject access to be recovered. This should avoid arguments over the cost of copying x-rays.

The Act gives patients easy and affordable access to their health records and places no restrictions on how those records may be used once obtained. The Office of the Data Protection Commissioner3 has made it clear that whilst it has no power to, nor would it seek to, impose restrictions, it is concerned about solicitors obtaining copies of complete health records for litigation purposes and the administrative burden which this places on health professionals when a report from a doctor or a specific extract might suffice. Obviously in many personal injury cases the client’s entire medical history is relevant. The Commissioner’s Office has however received complaints from clients about the disclosure of their entire records when they clearly did not expect that their entire records would be released. They have suggested that solicitors should make it clear to clients what information is being requested and why.

Some trusts and doctors may still continue to try and charge too much. The fee charging provisions should be explained to them (it can be helpful to refer to the statutory authority in the form of authority signed by your client), and if they fail to comply the matter can be taken up with The Office of the Data Protection Commissioner. The Data Protection Commissioner has issued Compliance Advice on Access to Health Records to the health sector. A copy can be obtained from the Commissioner.

Derek J Hamilton is a partner with Hamilton Ross Solicitors, Airdrie