GDPR and medical records – are the new rules hurting your compensation claim?

November 5, 2018

New GDPR rules introduced in May 2018 were meant to help easier access for us all. We ask the question though – has it made things worse? And what can we do to solve the problems?

Corries are a leading personal injury practice. We have helped thousands of people every year get the compensation they deserve. Can we help you? Read our article about how we offer a solution to a growing problem.

GDPR – The New Rules

In May 2018 the new General Data Protection Regulations (GDPR) struck fear into many businesses and institutions as they expected a flood of inquiries for information.

As we approach the six month anniversary of their introduction we highlight some of the problems they have caused and how they might prevent victims getting compensation they deserve.

And we ask the simple question – can’t we just get along and sort this out?

The Law

If you make a claim for compensation then usually your medical records will be needed. They are reviewed by a medical expert to support and value your claim.

As a patient you have had the right to access your medical records as early as the Access to Medical Records Act 1988.  This was improved upon by the Data Protection Act in 1998 and set out provisions for charges and procedures.

For years this has broadly worked for compensation claims.

The new GDPR rules impact greatly on G.P practices and hospitals in two key ways:-

  1. Firstly an organisation (like a hospital or G.P) has to respond to what is now called a Subject Access Request (SAR) within 30 calendar days.
  2. Secondly the organisation is no longer able to charge for these medical records. Before GDPR a standard charge of £50 was made for medical records and sometimes smaller sums for CD’s of radiology.

The GDPR landscape since May 2018

Since the introduction of the regulations there has been some confusion with differing answers given from the many UK G.P practices and hospital trusts.

Many organisations are either:-

  1. Insisting that the patient comes in for their records and then they have to post them to their solicitor at their own expense
  2. Refusing access or limiting the access to certain records as being disproportionate or excessive
  3. Still seeking to make a charge or invoice for the work done
  4. Redacting or scratching out records wholesale without proper regard to what information is needed

Lawyers and medical staff are having problems sorting this out.

What does the law say about this?

The law under the new GDPR is quite clear.

  1. Whilst it is in order for a GP to ask a patient to come in and check what is being sent the GP or hospital cannot refuse to post the records on the ground of costs
  2. The 30 day time limit is strict and starts from when the organisation first receives the request and cannot be refused as excessive unless there is very good reason
  3. They cannot charge for this work
  4. They must only redact what is appropriate and
  5. The request for records can be made electronically as well as by letter and;
  6. If the request for records is not satisfactorily dealt with then a complaint can be made to the Information Commissioner’s office (ICO)

 

Records for deceased people

A common problem in our experience is dealing with requests for families of people who have died.

Many hospitals and GP practices insist on a copy Grant of Probate or Letters of Administration. These are the legal documents someone gets through the Probate Registry when dealing with someone’s estate.

To get a Grant of Probate means the person who died must have left a will.  Currently just less than one quarter of us write a will.

The remaining three quarters have their estate divided by something called Intestacy.  For many estates where there is very little to be paid up there is provision for this to be done by simple presentation of the death certificate.  As a result many dead estates do not have any grant at all.

A further problem is getting over the hoops and then waiting for records.

When someone dies their GP records are usually sent to the PCSE.  This body holds the records and makes sure that someone is entitled see them before disclosing them.  Sadly delays with the PCSE are running into many months for cases now. This is affecting justice for many thousands of victims.

 

So how do we get the records for a deceased person with no Grant?

The simple way to get round this (and GDPR makes no difference) is to:-

  1. Reply to the organisation confirming that you are either an Executor Administrator of the estate or;
  2. Tell them you are someone who has a claim resulting from the death. This will include a widow, child or other person dependent upon the deceased. Copies of marriage certificates or other information may be helpful to smooth this request

Practical solutions

There is a storm coming in problems which will affect compensation victims if we do not get to grips with these problems. The NHS is under great strain and every penny counts. The delays n providing records makes claims slower, more expensive and with cases where time is tight people might lose out on compensation if their lawyer is not careful.

Many of us use our G.P’s and hospitals and see how pushed they are for time and money. Could we work together and help the victims of compensation claims in a better way?

If you go on holiday or to theme parks and want to avoid the queues you can pay extra for a premium service.

We think there is a way to help this and suggest that medical professionals and solicitors work together. We suggest that:-

  1. The period of time for providing medical records be extended to say two months to allow for the fact that busy hospitals and G.P’s have huge volumes of requests to deal with it
  2. Modest administration charges for the work being done be incorporated into General Practice direction or a Code of Practice between lawyers and medical institutions and;
  3. That where there is likely to be a possible delay or if a case is approaching the three year deadline that there be a fast-track process for such cases perhaps with a greater fee incurred. This will need to be carefully policed to avoid some lawyers abusing it of course and;
  4. For deceased cases there be a similar fast-track for cases where limitation is up in say six months or less from the date of the request. This could be proved by a copy of the death certificate or copy letters with an earlier diagnosis.

Summary

Our view is that the victim must come first. Resources need to be put into this by the NHS and the legal profession needs to work with them. Greater access to records for us all is a good thing. But is must derail the rights of accident and disease victims.

At Corries we always act in the best interests of our clients to get them the compensation they deserve. Cal us now FREE for a o obligation chat 0800 655 6550.