Diane Vincent

Chartered Legal Executive

DATE PUBLISHED: 27 Jan 2022 LAST UPDATED: 24 May 2022

Can an Attorney, or Deputy, have access to medical records?

This has always been a difficult area for NHS staff to deal with and the Office of the Public Guardian (OPG)  issued guidance which confirms that holders of Lasting Powers of Attorney and Deputies under a Court of Protection Order are entitled to see the donor’s medical records. This would enable them to make best interests decisions on behalf of the Donor.

Whilst there are no specific statutory provisions to enable a third party to exercise these rights on behalf of a Donor, who lacks capacity to manage their own affairs,  advice given by the Information Commissioner’s Office advises that “it is reasonable to assume that an Attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority”

It must be clear to the NHS and Local Authority staff  that the third party requesting the information is entitled to act on behalf of the patient and they will need to check carefully that the person requesting the information is definitely an Attorney or Deputy.  This can be done by doing a search of the OPG Register.

It is possible to do a rapid search if the case is urgent. Reasons for this could include the third party needing to make a best interest decision in relation to medical treatment, where a patient was being moved from hospital care to an alternative setting (to avoid bed-blocking) and/or cases where additional information is needed about a patient’s wishes (which may be set out in the LPA) in connection with life sustaining treatment.

Any request would have to be checked by NHS staff if asked for medical records so that they ensure that the reason for the person requesting the information is to enable them to act properly.  They will also need to take into account whether the disclosure of such medical information is justified and in the patient’s, and the public’s, best interests and does not go against the Patient’s right to privacy.  Information can be found in Chapter 16 of the Mental Capacity Act Code of Practice.

If you require advice regarding any of the above, please contact our Chartered Legal Executive, Diane Vincent, or Partner & Solicitor, Carla Brown from our Wills, Trusts and Probate department.

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