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Guidelines on access to medical reports

Revised June 2007

The Access to Medical Reports Act 1988 (the Act) and Access to Personal Files and Medical Reports (Northern Ireland) Order 1991 (the Order) give patients rights in respect of reports written about them for employment or insurance purposes.

They cover reports written by the applicant’s GP or a specialist who has provided care, including an occupational health doctor. Reports written by an independent medical examiner are not covered by the Act or the Order. In the BMA’s view, patients are entitled to access these reports under data protection legislation. Read the BMA’s guidance here.

Terms used in these guidelines
In this document

• clients of insurance companies
• employees or potential employees of employing companies

are referred to as patients to indicate their relationship with the doctor writing the report.

Definitions
In the Act and the Order –

• "the applicant" means the person applying to a medical practitioner for a medical report relating to another individual for employment or insurance purposes;
• "care" includes examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment;
• "employment purposes", in the case of any individual, means the purposes in relation to the individual of any person by whom he is or has been, or is seeking to be, employed (whether under a contract of service or otherwise);
• "health professional" has the same meaning as in the Data Protection (Subject Access Modification)(Health) Order 1987;
• "insurance purposes", in the case of any individual, means the purposes in relation to the individual of any person carrying on an insurance business with whom the individual has entered into, or is seeking to enter into, a contract of insurance, and "insurance business" and "contract of insurance" have the same meaning as in the Insurance Companies Act 1982;
• "medical practitioner" means a person registered under the Medical Act 1983;
• "medical report", in the case of an individual, means a report relating to the physical or mental health of the individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual.

Aim and extent of legislation
The aim of the Act and the Order (the legislation) is simply to allow individuals to see medical reports written about them, for employment or insurance purposes, by a doctor whom they usually see in a "normal" doctor/patient capacity. This right can be exercised either before or after that report is sent. (A patient who chooses not to see the report before it is sent may apply for a copy of the report within 6 months of it having been supplied.) The individual patient/client then has the right to signal any disagreement with matters of fact recorded in that report, and to append their disagreement to the report, or to withhold the report wholly, effectively by withdrawing consent to the release of information.

Administrative duties
The administrative requirements of the legislation fall largely upon the applicant, but some will fall upon the doctor writing a report. The rights of the patient are restricted by law, but can be exercised at several points in the administrative process. Doctors practising as medical advisers to employing companies, or to insurance companies, will have additional duties and responsibilities. Doctors need to ensure they only share relevant and necessary information about the patient. Separate guidance on this area is available from the Occupational Health Committee. [See reference 1]

Consent
An applicant must not apply to a medical practitioner for a medical report relating to a patient until the individual in question has been notified and has consented to the application. In general, before any medical report can be written – whether for insurance, pre-employment or for any other purpose – the doctor must be content that the individual has genuinely consented to the release of the information.

In order to improve the consent process, in 2003, the BMA and the Association of British Insurers jointly published a general practitioner’s report (GPR) package which aims to make it easier for doctors to provide information to their patients’ insurance companies. The package includes:

• a standard covering letter for insurers to send to GPs, together with an overview of the types of information that are relevant to different types of insurance policy
• a standard GPR form
• a standard consent declaration for patients.

Read the GPR documents here.

Individuals’ rights
Where the information is for employment or insurance purposes the applicant must notify patients of their rights under the Access to Medical Reports Act. These are
to withhold permission for the applicant to seek a medical report relative to physical or mental health (that is, to refuse consent to the release of information),
to have access to the medical report after completion by the doctor either before it is sent to the applicant or up to six months after it is sent
if seeing the report before it is sent, to instruct the doctor not to send the report and
to request the amendment of inaccuracies in the report.

Seeing the report
The right of the individual to indicate a desire to see the report can be exercised at a number of points in the process. It can be exercised before the report is sent to the applicant or up to 6 months after consenting to the release of information.

Patients must inform the applicant that they will wish to exercise their right of access. It is the applicant's responsibility to inform the doctor of this when seeking the report and to confirm to the patient that a medical report is being sought.

If informed that the patient wishes to see the report the doctor must not dispatch it to the applicant for 21 days, allowing the patient time to have access. If the patient uses the access provisions earlier and agrees to the release of the information, then the report may be dispatched before the 21 day period expires.

Even where patients do not inform the applicant of their wish to see the report at the time of signing their consent, they may still inform the doctor that they want to see the report if an application for informant is received. Where such a request is made before the report is sent, the doctor must not send the report until the patient has made arrangements to see the report or 21 days have elapsed.

If the patient sees the report before it is sent the doctor must not send the report to the applicant until the patient has indicated willingness to release the form. This overrides the "normal" 21 days rule.

Amendments
If patients believe that there are factual inaccuracies in the report he may seek their correction producing evidence of the errors. The doctor is not obliged to accept the patient's opinion but if refusing to amend the report must agree to appending to it the patient's statement regarding the disputed information. Requests for changes to the report or for a statement to be attached must be made in writing.

Patients, or the person commissioning the report, sometimes try to persuade doctors to change a report to make it more favourable from their perspective. Although factual errors can, and should, be corrected, this pressure must obviously be resisted. As a last resort the patient can withhold consent for the supply of the report.

Delayed access
The patient also has the right to see the report at a later date, up to 6 months after it has been sent. Obviously in these circumstances the options of withdrawal of consent to the release of information and of requesting amendment to the report, are not valid. But this right of access may be exercised at any time up to 6 months after the report has been sent and thus the doctor must have available an accurate, dated copy of the report for at least 6 months.

Fees
The patient is entitled to receive a copy of the report and the doctor may charge a reasonable fee to cover the cost of supplying the report (which should cover the cost of producing a copy).

Withholding of information
In keeping with the Subject Access provisions of the Data Protection Act 1998 the doctor has the right to withhold from the patient any information the release of which would cause serious harm to the mental or physical health of the patient. In the context of employment or insurance reports, this is likely to be an exceptionally rare occurrence.

In the same way, the patient has no right of access to any information where disclosure would be likely to reveal information about another person or reveal the identity of someone other than a health professional acting in their professional capacity, who has supplied information to the doctor about the individual, unless that person has consent to its disclosure.

In any case where a doctor invokes the provision for restricting the access to the report the patient must be informed of that restriction, and the rest of the report made available.

Offences
Any failure to comply with the terms of the legislation is an offence and a court may enforce compliance with the legislation – including the release of a report which the court is not convinced would cause serious harm to the individual.

BMA: ethics advice
The weakness of the legislation is that it applies only to medical reports written by a medical practitioner who has been involved in some way in the diagnosis or treatment of the individual patient. Thus medical reports written by independent medical examiners or indeed by any doctor who has never been involved in treating the patient are excluded from this legislation. It is the BMA’s view, however, that patients are entitled to access these reports under the Data Protection Act 1998. [Read the BMA's guidance here.] The GMC also advises that where doctors have contractual obligations to a third party, such as an insurance company, they must offer to show patients the medical report, or give them copies, whether or not this is required by law. See para 17 of [the GMC’s guidance here]

It is the advice of the Association that doctors should be prepared to discuss with the patient the content of their reports and especially the type of questions that they, as doctors, are being asked to answer about the patient.

Occupational health physicians
Since the implementation of the Act, the extent to which occupational physicians are subject to the legislation has been a matter of debate. There are differing interpretations of the terms ‘medical report’ and ‘care’ under the Act. In the past, it has been suggested, for example, that providing employees with counselling on the suitability of a job in relation to their health, or advising employers on an individual's fitness to work, would count as "care" and would mean that the occupational health physician's report might be covered, but there has been no judicial decision to resolve the matter. The degree of contact and nature of consultations with employees are likely to be relevant but the Faculty of Occupational Medicine advises that ultimately ‘it is for occupational physicians to determine, on each occasion, whether or not previous activities amount to provision of care as defined by the Act’. [See reference 2] Detailed specific examples of when the Act will apply to occupational physicians are set out in the guidance issued by the BMA's Occupational Health Committee [See reference 1] and the Faculty of Occupational Medicine. [See reference 3]

Patients who lack capacity
Although ordinarily disclosures of health information require consent, where adults lack the capacity to consent on their own behalf to disclosures of their information, in certain circumstances, disclosure can still take place. Both the Adults With Incapacity (Scotland) Act, and the Mental Capacity Act for England and Wales contain powers to nominate individuals to make health and welfare decisions on behalf of incapacitated adults. Where these proxy decision makers require access to health information that is necessary to carry out their functions, that information should ordinarily be provided. These individuals can also be asked to consent for disclosure to third parties. Where there are no nominated individuals, requests for access to information relating to incapacitated adults can usually be granted where there is both a legitimate need for the information, and releasing the information would be in the best interests of the incapacitated adult. In all cases, only such information as is necessary to achieve the purpose or purposes for which disclosure has been requested should be released.

Summary
In summary the major responsibility falling upon the treating doctor who writes insurance or employment reports on behalf of their patients is to:

1. Date stamp all requests for reports and date correspondence sent to the applicant. (Remember the 21 day rule.)
2. Collate requests for access with requests for reports.
3. Inform the patient once the report is prepared.
4. Release the reports only after acting upon the patient's expressed wishes in relation to seeing the report. (Remember the 21 day rule.)
5. Do not release a report which has been "accessed" until the patient indicates it may be released.
6. Amend errors of fact or judgement, or append the patient's note of disagreement, as appropriate.
7. Keep copies of reports for a minimum of 6 months.

The doctor who acts as an independent medical examiner and has no other relationship with the patient is not covered by the legislation but must provide patients with access to information about themselves under the Data Protection Act.

The doctor who acts as a medical officer to an applicant and is instrumental in requesting or receiving such reports must ensure that the applicant is advising patients of their rights, and reminding doctors of their responsibilities in every case. This will mean the development of administrative procedures, and notes of guidance and explanation to doctors and patients.

Download the document as a pdf from the link on the right. (78K)

References
[1] The occupational physician, BMA Occupational Health Committee, June 2001
[2] Faculty of Occupational Medicine. Guidance on ethics for occupational physicians (6th ed). London: FOM, May 2006; page 11.
[3] Faculty of Occupational Medicine. Guidance on ethics for occupational physicians (6th ed). Op cit]