Access to Medical Reports Act 1988 and Access to Personal Files and Medical Reports (Northern Ireland) Order 1991 (1,2)
- these pieces of legislation give patients the right to see medical reports written about them, for employment or insurance purposes, by a doctor who they usually see in a 'normal' doctor/patient capacity
- includes reports written by the patient's GP or a specialist who has provided care and, in some circumstances, an occupational health doctor
- right can be exercised either before or after the report is sent - patients have the right to signal any disagreement with matters of fact recorded in the report, and to append their disagreement to the report, or to withdraw their consent for the release of the information
- reports written by independent medical examiners are not covered by the legislation but, in the BMA's view, patients are entitled to see these reports under data protection legislation (2)
Summary:
- relates to insurance reports produced by doctors at the request of an insurance company, with the consent of the patient.
- patient may request that the completed report be retained for 21 days so that the patient may view the report.
- doctor must also provide a copy of the report should the patient request it within the next 6 months
- patients are allowed the opportunity to discuss the report with their doctors and to attach a codicil if they feel that the report contains inaccuracies. However, the GP is not obliged to alter his comments if there is still a diffrence of view.
- ultimately, it is possible for the patient to refuse the sending of the report
- if the patient sees the report before it is sent the doctor must not send the report to the applicant until the patient has indicated willingness to release the form. This overrides the "normal" 21 days rule
More detailed information (1):
- in the following information
- clients of insurance companies
- employees or potential employees of employing companies
- are referred to as patients to indicate their relationship with the doctor writing the report Definitions In the Act and the Order
- "the applicant" means the person applying to a medical practitioner for a medical report relating to another individual for employment or insurance purposes;
- "care" includes examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment;
- "employment purposes", in the case of any individual, means the purposes in relation to the individual of any person by whom he is or has been, or is seeking to be, employed (whether under a contract of service or otherwise);
- "health professional" has the same meaning as in the Data Protection (Subject Access Modification)(Health) Order 1987;
- "insurance purposes", in the case of any individual, means the purposes in relation to the individual of any person carrying on an insurance business with whom the individual has entered into, or is seeking to enter into, a contract of insurance, and "insurance business" and "contract of insurance" have the same meaning as in the Insurance Companies Act 1982;
- "medical practitioner" means a person registered under the Medical Act 1983;
- "medical report", in the case of an individual, means a report relating to the physical or mental health of the individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual
- Aim and extent of legislation
- aim of the Act and the Order (the legislation)
- to allow individuals to see medical reports written about them, for employment or insurance purposes, by a doctor whom they usually see in a "normal" doctor/patient capacity
- right can be exercised either before or after that report is sent
- note that a patient who chooses not to see the report before it is sent may apply for a copy of the report within 6 months of it having been supplied
- individual patient/client then has the right to signal any disagreement with matters of fact recorded in that report, and to append their disagreement to the report, or to withhold the report wholly, effectively by withdrawing consent to the release of information
- Administrative duties
- administrative requirements of the legislation fall largely upon the applicant, but some will fall upon the doctor writing a report
- rights of the patient are restricted by law, but can be exercised at several points in the administrative process. Doctors practising as medical advisers to employing companies, or to insurance companies, will have additional duties and responsibilities
- doctors need to ensure they only share relevant and necessary information about the patient
- Consent
- applicant must not apply to a medical practitioner for a medical report relating to a patient until the individual in question has been notified and has consented to the application
- in general, before any medical report can be written -whether for insurance, pre-employment or for any other purpose ? the doctor must be content that the individual has genuinely consented to the release of the information
- Individuals' rights
- where the information is for employment or insurance purposes the applicant must notify patients of their rights under the Access to Medical Reports Act
- these are to withhold permission for the applicant to seek a medical report relative to physical or mental health (that is, to refuse consent to the release of information)
- to have access to the medical report after completion by the doctor either before it is sent to the applicant or up to six months after it is sent if seeing the report before it is sent
- to instruct the doctor not to send the report and to request the amendment of inaccuracies in the report
- Seeing the report
- right of the individual to indicate a desire to see the report can be exercised at a number of points in the process. It can be exercised before the report is sent to the applicant or up to 6 months after consenting to the release of information
- patients must inform the applicant that they will wish to exercise their right of access. It is the applicant's responsibility to inform the doctor of this when seeking the report and to confirm to the patient that a medical report is being sought
- if informed that the patient wishes to see the report the doctor must not dispatch it to the applicant for 21 days, allowing the patient time to have access. If the patient uses the access provisions earlier and agrees to the release of the information, then the report may be dispatched before the 21 day period expires
- even where patients do not inform the applicant of their wish to see the report at the time of signing their consent, they may still inform the doctor that they want to see the report if an application for informant is received. Where such a request is made before the report is sent, the doctor must not send the report until the patient has made arrangements to see the report or 21 days have elapsed
- if the patient sees the report before it is sent the doctor must not send the report to the applicant until the patient has indicated willingness to release the form. This overrides the "normal" 21 days rule
- Amendments
- if patients believe that there are factual inaccuracies in the report he may seek their correction producing evidence of the errors. The doctor is not obliged to accept the patient's opinion but if refusing to amend the report must agree to appending to it the patient's statement regarding the disputed information. Requests for changes to the report or for a statement to be attached must be made in writing
- patients, or the person commissioning the report, sometimes try to persuade doctors to change a report to make it more favourable from their perspective. Although factual errors can, and should, be corrected, this pressure must obviously be resisted. As a last resort the patient can withhold consent for the supply of the report
- Delayed access
- the patient also has the right to see the report at a later date, up to 6 months after it has been sent
- options of withdrawal of consent to the release of information and of requesting amendment to the report, are not valid in this situation
- Fees
- patient is entitled to receive a copy of the report and the doctor may charge a reasonable fee to cover the cost of supplying the report (which should cover the cost of producing a copy)
- Withholding of information
- inkeeping with the Subject Access provisions of the Data Protection Act 1998 the doctor has the right to withhold from the patient any information the release of which would cause serious harm to the mental or physical health of the patient. In the context of employment or insurance reports, this is likely to be an exceptionally rare occurrence
- in the same way, the patient has no right of access to any information where disclosure would be likely to reveal information about another person or reveal the identity of someone other than a health professional acting in their professional capacity, who has supplied information to the doctor about the individual, unless that person has consent to its disclosure
- in any case where a doctor invokes the provision for restricting the access to the report the patient must be informed of that restriction, and the rest of the report made available
- Doctors' responsibilities
- Doctors who receive requests for reports
- main responsibilities of doctors who receive requests from insurance companies or employers for medical reports are to:
- date stamp all requests for reports and date correspondence sent to the applicant (in order to ensure compliance with the 21-day rule)
- collate requests for access with requests for reports
- release reports only after acting upon the patient's expressed wishes in relation to seeing the report
- not release a report which has been 'accessed' until the patient indicates it may be released
- if the patient has expressed a wish to see the report but has made no attempt to do so, the report may be sent 21 days after the receipt of the application
- amend factual errors or append a note outlining the patient's disagreement, as appropriate
- keep copies of reports for a minimum of six months and provide patients with access to them on request.
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