These cases are based on actual calls made to MDDUS advisers and are published here to highlight common challenges within general practice. Details have been changed to maintain confidentiality.
Sudden death request
Q Our practice has had a request from the procurator fiscal for access to medical records following the sudden death of a patient. I know the duty of confidentiality extends beyond death – am I allowed to disclose the records?
The short answer is yes. If you are satisfied that this is a legitimate request, then you are obliged to disclose records requested by a procurator fiscal. (The same obligation exists in England and Wales for requests from a coroner.) The identification of a dead body can usually be justified as being in the public interest and so would meet the threshold for disclosure without consent. Before disclosing, double check you have the correct patient details and only disclose what is necessary to satisfy the request. Note that the fiscal has the power to ask for an unredacted copy of the records.
Drug using driver
Q A new practice patient, Mr B, drives an HGV lorry. I can see in his record that his previous GP had concerns about his “overuse” of dihydrocodeine and advised Mr B against continuing to drive. It appears Mr B reduced his intake for a short time but this has since increased and he is still on the road. I believe he is no longer fit to drive - what should I do?
Doctors have a duty to raise and act on concerns regarding a patient’s fitness to drive. If you are concerned that Mr B is not fit to drive but have evidence that he is continuing to do so, then clearly document this in his notes and follow up with him in writing. Explain to Mr B your concerns and the reasons why he should not drive. Advise him he has a legal duty to self-refer to the DVLA but be clear that if he does not do so, then you will be obliged to inform the appropriate authorities directly. GMC guidance is clear: “If you believe that [the patient’s refusal to stop driving leaves others exposed to a risk of death or serious harm], you should contact the DVLA or DVA promptly and disclose any relevant medical information, in confidence, to the medical adviser.”
Colleague mask refusal
Q I am a locum practice nurse and have been working during the pandemic at two practices. At one of the practices, the receptionist refuses to wear a mask as she says she doesn’t believe in Covid-19. I have raised it with her employer but he said he cannot force her to wear a mask. A couple of patients have already raised concerns about it. What should I do?
The best approach would be to discuss this with the practice manager/GP principal and hopefully reach an amicable solution. Familiarise yourself with the practice’s standard operating procedure and refer to any relevant sections. Mention to the managing team that patients have expressed concern about the receptionist and make it clear you only want what is best for patients, staff and the practice. If any issues were to arise in relation to the receptionist’s mask refusal, ultimately it would be the practice owner(s) who would be held accountable. They may wish to seek their own independent advice. Document the steps you have taken to address the matter. And remember, it is your decision as to whether you continue working at the practice under these circumstances .
Q We are considering creating an online form for patients to request access to their records. Would this affect the one-month time limit for responding? Does the clock start when the request is submitted, or once we have verified the person’s right to make the request?
Under the General Data Protection Regulation (GDPR), the time limit for subject access requests (SARs) begins when the request is made and not once it has been assessed and verified. This would apply whether the request was made via an online form or by other valid means. Unfortunately, the term “one month” is not otherwise defined within the regulations at the moment, and therefore it would be prudent to take the strictest interpretation of this as indicating 28 days. Should additional information be required before copies can be released, then the 28-day time period would start as soon as the additional information has been provided.
Q Our practice in Scotland has recently registered a patient from England who has dementia. He has a health and welfare power of attorney (POA) established under English law. Is this recognised in Scotland?
Assuming that the POA was officially validated in England, then it will be automatically valid in Scotland. The Office of the Public Guardian in Scotland has created a certificate confirming this, and stating that there is no need for that person to go through any kind of formal process to be endorsed for use in Scotland.
Court order for notes
Q We have received a request from solicitors asking for copies of the notes of a patient, Ms G. It appears Ms G is suing her insurance company and these solicitors are working on the company’s behalf. Their request is backed up by a court order - but it is unusual in that it appears to be asking for all records from when Ms G was born in 1984. How should we proceed?
First, take reasonable steps to confirm the court order is genuine. A copy should be sent to MDDUS (appropriately redacting patient details) in order that it can be reviewed and then complied with if genuine. All records held by the practice that fall within the court order should be produced, but GMC guidance (Confidentiality) does provide that you should object to being compelled to disclose what appears to be irrelevant information (such as information regarding a relative not involved in the proceedings) or disclosures that might put someone at risk of harm. In this particular case, the order seeks all records dating back to the patient’s birth, although it may not be immediately obvious how much of the information is relevant to the current court proceedings. Should you have concerns over the relevance or potential harm that might arise from the full records being disclosed, highlight this when providing the records to the court (rather than to the solicitors making the request). In that event, the records should be placed in an envelope marked ‘confidential’ and sent to the court with a covering letter setting out the broad nature of your concerns. The solicitors who made the request will then have to apply to the court for the envelope to be opened. The patient will also have the opportunity to object to disclosure and the practice will have complied with its obligations in terms of confidentiality.
Q One of our patients requires an intimate examination but she is reluctant to come into the practice and asked if it can be conducted remotely. Is this possible? She has asked for a chaperone. How would we arrange one in this way?
Conducting intimate examinations via video is possible in certain circumstances where a face-to-face exam is not practicable. If you feel a video consultation is clinically appropriate, then discuss its limitations with the patient and clearly document this. For the examination, check the patient is comfortable in her surroundings and that the necessary technical arrangements are in place allowing both parties to be clearly seen and heard. A chaperone should be someone appropriately trained (e.g. a nurse) and not the patient’s relative or friend. If the chaperone cannot be physically present with you while you conduct the examination, ensure they can clearly see what both parties are doing. Read our more detailed advice.
Q A fellow practice GP has been behaving erratically in recent months and has been making mistakes with his work. We’ve tried discussing the issue with him and offered various means of support but he won’t engage. We’re concerned one of his errors might jeopardise patient safety. What should we do?
This is a difficult situation but the General Medical Council is very clear: “All doctors have a duty to raise concerns where they believe that patient safety or care is being compromised by the practice of colleagues or the systems, policies and procedures in the organisations in which they work”. It also emphasises how your duty to put patients’ interests first overrides personal and professional loyalties. If the doctor in question has refused to engage on the issue, then you may need to raise your concerns at a higher level, for example with his responsible officer or NHS trust/health board. Discuss the issue as a practice and in the meantime ensure patients are safe.
This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.