Disclosures to solicitors

Ayisha Hooper, case manager at Medical Protection, looks at the reasons why practices can be approached by solicitors for the disclosure of medical records

It is not uncommon for practices to be approached by solicitors for the disclosure of medical records. The most common reasons behind these requests include:

• Claims for negligence
• Complaints
• Legal disputes between estranged parents
• Court orders
• A challenge to a deceased patient’s will

Practices may be concerned by the reasons behind such requests but they should be approached in the same way as any similar request from anyone else: you must first consider if you have the patient’s consent to make that disclosure. If you do not have consent, then you will need to consider whether the disclosure is required by law or necessary in the public interest.

Does the solicitor represent the patient?

If the patient is the solicitor’s client, then you should treat the disclosure as a subject access request (SAR). You must be satisfied that the solicitor has provided evidence of the patient’s consent to the disclosure. You must also be satisfied that the patient understands the scope of the request. For example, do you think the patient appreciates that the solicitor has requested the entire medical record rather than certain sections? If you are concerned that the consent may not be valid, you must address this with the solicitor or directly with the patient if appropriate.

Children

It is not uncommon for estranged parents to request copies of the medical records via their solicitors. The GMC advises that children are also owed a duty of confidentiality and that a child or young person under the age of 18 may have the maturity to decide about disclosure themselves. You should therefore consider whether it would be appropriate to seek the child’s consent. If they refuse consent, then this should normally be respected unless this would be contrary to the best interests of the child.

Where the patient does not have enough maturity to decide for themselves, you would need to be satisfied that the adult requesting the records has parental responsibility. You should also consider if there would be any safeguarding concerns if you were to agree to the disclosure. Where there are no such concerns, it is important to remember that one parent cannot veto the other’s right to receive information on their children. For more information on this, read our online article “Disclosing information about children and young people”.

Court orders

The solicitor may provide you with a court order. Court orders detail a judge’s directions towards the various parties involved in both civil and criminal court cases. It is important to check the wording of the order to determine if any of the judge’s orders are directed at the practice. If they are, then you must comply. If you are uncertain, you should contact Medical Protection for advice on how to proceed.

Public interest

A disclosure in the public interest to a solicitor (rather than, for example, to the police or social services) would be rare and you may want to seek advice from Medical Protection if you are considering this.

Redaction

Except for court orders, you must check the documents prior to disclosure and redact any third party information or information that may cause serious harm. If you have concerns about disclosing such information as a result of a court order, it would be advisable to seek advice from the court on how to proceed.

Privacy notices

Where the practice is the subject of the claim, you may be asked to forward the patient’s records to Medical Protection’s legal team. Your practice’s privacy notices should state that you will disclose information where necessary in connection with legal proceedings. This is to ensure that practices are compliant with the obligation to be transparent on how personal data may be used.

If you need assistance with this situation or anything similar, please call the Medical Protection advice line on 0800 561 9090.