PATIENTS have never been more informed as they are today on health matters – this thanks to the almost limitless information now instantly accessible within a few clicks on an internet browser. Just how helpful this is to doctors and other healthcare professionals is perhaps debateable. Combine this with changing attitudes to healthcare – rising consumerism, a less paternalistic approach to treating patients – and it is only inevitable that doctors and dentists are finding aspects of their practice increasingly questioned in some cases.
The Data Protection Act (DPA) 1998 enshrines the right of access by patients to any personal information held by a practice or healthcare body. An individual can send a subject access request requiring a data holder to disclose what personal information is held and also to provide a copy of that information. Patients also have the right to request amendments to their records. These can include correcting simple errors or redacting sensitive details or may involve more fundamental conflicts over clinical content.
The National Information Governance Board for Health and Social Care has provided guidance on patient requests to amend to health and social care records. It states:
"Most examples of disagreements over a record’s contents seem to be caused by opinions in the record. When we were preparing to produce this guidance, we were made very aware of the stigmas people suffer when inappropriate or provocative comments or opinions are added to their record. We take this very seriously, and we expect that all health and social care professionals will share our concerns and always act appropriately.
"You should always remember that patients have a legal right to see their record. You should make sure that you fully consider the opinions you plan to include in a record, and that you can justify them as being a necessary part of the patient’s care."
MDDUS also deals with a growing number of advice calls to do with subject access requests under the Data Protection Act 1998. It is important to always remember that anything recorded, no matter where it is stored, is potentially recoverable under the Act. It should be made very clear to practice staff that relevant emails, text messages or other notes may someday be seen by a subject patient or carer and possibly challenged. Notes in records should be neutral and non-judgemental – a simple statement of the facts.
But this is not to say that the inclusion or not of valid clinical opinions should be subject to debate. Department of Health guidance states: "The DPA fourth principle requires that information should be accurate and kept up-to-date. This provides the legal basis for enforcing correction of factual inaccuracies. An opinion or judgement recorded by a health professional, whether accurate or not, should not be deleted. Retaining relevant information is essential for understanding the clinical decisions that were made and to audit the quality of care."
The guidance goes on to recommend that in any disagreement over the accuracy of an entry the patient should be allowed to include a statement within the record to the effect that they disagree with the content. The patient should be further advised that if they are unhappy with this outcome they can make a complaint through NHS Complaints procedures or the Information Commissioner's Office which handles cases involving compliance with the Data Protection Act.
In cases where both parties agree that information is factually inaccurate the record should be amended but ensuring that the original information is still legible along with an explanation of why the record has been altered. In hard copy records, text to be amended should be scored out with a single line and the correct entry written alongside. Amendments should be clear and legible and should include time, date and a signature of the individual making the change. Computer records should also allow for an audit trail identifying the date and time of any change and the person responsible.
Transparency is an oft-used word these days but in the case of healthcare records it is the best way of getting at the truth in a potential dispute arising weeks, months and perhaps even years later.
ACTION: Ensure that clinical notes offer a clear and non-judgemental account of clinical observations and opinions, bearing in mind patients’ rights under the DPA.
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.
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