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.
Data protection fee for expert work
Q. I am a GP who undertakes expert legal work. A law firm has asked me to provide an opinion on a clinical negligence case, but they say I should be registered as a data controller with the Information Commissioner’s Office (ICO). Is this really necessary in order to write medico-legal reports?
Any organisation or sole trader who processes personal information needs to pay a data protection fee to the ICO, unless they are exempt. The ICO website has a useful FAQs page which includes a self-assessment tool to help assess whether you need to pay a fee. A key deciding factor is who takes responsibility for deciding how the information is processed. Expert witnesses will generally be considered to be third party data controllers, rather than merely data processors. It is therefore likely that you will indeed require to register as a data controller.
Q. I noticed a heated debate amongst a group of doctors on Twitter recently in which a GP was attacked and criticised for a brief political comment he made. Some of the comments were very harsh and of a personal nature – is this kind of exchange seen as “online banter” or could it have more serious consequences?
Healthcare professionals must always think carefully before posting comments on sites such as Twitter. Doctors who are found to have made inappropriate comments could find themselves in professional difficulties. The standards expected of doctors do not change when they are communicating through social media - online debates can quickly become heated, but doctors are expected to behave with integrity and respect both in their professional and personal lives. Posting comments that could potentially cause offence or be deemed unprofessional in any way should be avoided.
The General Medical Council is clear in Good medical practice that “you must treat colleagues fairly and with respect”. In its guidance Doctors’ use of social media it adds: “This covers all situations and all forms of interaction and communication. You must not bully, harass or make gratuitous, unsubstantiated or unsustainable comments about individuals online. When interacting with or commenting about individuals or organisations online, you should be aware that postings online are subject to the same laws of copyright and defamation as written or verbal communications, whether they are made in a personal or professional capacity”. Anonymity cannot be guaranteed online, even if posting under an alias, and the GMC guidance reiterates the importance of identifying yourself by name if you are representing yourself as a doctor online. Read more in this MDDUS article on the pitfalls of social media use.
Appointing a new senior administrator
Q. Our practice currently has a team of six admin and reception staff. We would like to introduce the role of senior administrator to manage the day-to-day running of the team. We have identified an individual to whom we would prefer to offer the role. Are we obliged first to advertise the position?
There is no legal obligation to advertise the post, so you could just offer it to your preferred choice. You would just need to ensure that there are no possible discrimination issues that other staff could raise – such as age, race or disability. However, to avoid potential grievances, the best course of action may be to run an advert internally for a week to allow anyone to apply and then carry out interviews so you can justify who gets the job, i.e. that you select the best candidate with the right skills for the job.
Step-parent accessing records
Q. The stepmother of one of our patients, who is aged five, has asked if she can “quickly check” something in the boy’s notes. She told us the father had given his permission. Would we be right to refuse her request?
As the child lacks the capacity to make his own decision here, only someone with parental responsibility has the right to request access to his records. Step-parents can apply for parental responsibility through the courts and it should be confirmed whether the stepmother has this legal right. If she cannot provide evidence of this, you may wish to advise her to take her query to the boy’s parents. GPs are also advised to consider the best interests of children when making decisions regarding access to records, as outlined in the GMC guidance on accessing medical records for children, young people and their parents. Read more in this MDDUS advice article on parental responsibility and this GMC guidance on parents and parental responsibility.
HCA B12 jabs
Q. We would like our healthcare assistant (HCA) to start giving B12 injections. Do we need to send them on a training course of some kind?
Healthcare assistants are allowed to administer injections such as B12 or flu vaccinations provided they are appropriately trained and experienced to do so. It would be the practice’s responsibility to determine how much training (if any) is required for the HCA to meet this threshold. The practice should consider the GMC guidance on delegation which states that if patient care is being delegated, you must be satisfied that the person to whom you delegate has the knowledge, skills and experience to provide the relevant care or treatment; or that the person will be adequately supervised to do so. Another crucial point is that the HCA must work under a patient specific direction (PSD) – not a patient group direction (PGD). HCAs are not prescribers, so each medication must be prescribed by an appropriately registered prescriber. Read more specific advice on PGDs/PSDs from the Care Quality Commission.
Covering copying costs
Q. We’ve received a request for a copy of a patient’s entire medical record. It has come via a solicitor’s office and we have the patient’s consent. It’s a huge file – can we charge a fee to cover our costs?
A practice complying with a subject access request for a patient’s records is not allowed to charge a fee for photocopying. This applies regardless of whether the request is received directly from the patient or via a solicitor. The Information Commissioner’s Office explains that in most cases you cannot charge a fee to comply with a subject access request. You can only charge a “reasonable fee” for the administrative costs of complying with a request if it is manifestly unfounded or excessive, or if an individual requests further copies of the same data. Where the request has come from a solicitor it is important to ensure you have the patient’s consent to provide the records.
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.