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Blog two of the series! Having said hallo in my first blog (https://www.bma.org.uk/connecting-doctors/the_practice/b/weblog/posts/gdpr-for-gps-from-the-it-lead-for-gpc) this is a sort of setting the scene post, a bit of background, and an offer of a plan for the next few weeks.
Many ask “Why GDPR?”
Well the original EU Directive, (full Title for the nostalgic; “Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data”), as it said on the tin, was written in 1995. Oasis were number one with “Some might say”, I was 38 in my first session on what was then called the General Medical Services Committee. Amazon had only been trading for a year and only sold books, Mark Zuckerberg was 11, another 9 years before he’d go up to Harvard and launch “The Facebook”. The world marveled at the Blackberry thumb-wheel and Apple would ferret away in their labs another twelve years before emerging with the first iPhone. Uber and AirBNB hadn’t even been dreamt about. In short the DPA was very much pre “social media / digital revolution” and although undoubtedly ahead of its time there’s no way it could have pre-empted whats happened since. We’ve come a long way in those 20+ years, much to our very great advantage but not always. Occasionally adverse, our experience of our disseminated digital, direct and instantaneous world demanded a refresh and update. GDPR is that refresh. Its ethos is simple, to provide for EU residents, “respect (for) their fundamental rights and freedoms, in particular their right to the protection of personal data”. Basically GDPR tightens up on many of the elements of the 1998 DPA, enhances the existing rights of Data Subjects (DS) and creates new ones that were not anticipated in the original. Data Controllers (DCs), in the context of this blog, GPs, get stronger support for declining data extracts as well as new responsibilities and as Data Controllers (DCs) we must comply with the new laws and must be able to demonstrate compliance rather than just be aware of them. Finally, the consequences of non-compliance or breaching have changed.
OK that’s GDPR so what’s this DPA2018 I’ve heard about?
GDPR also allows individual countries some flexibility (derogations) in some aspects of the law and these will be made law in the Data Protection Act currently going through parliament as the Data Protection Bill (House of Commons) which you can track* here https://www.parliament.uk/business/news/2018/march/have-your-say-on-the-data-protection-bill/ . GDPR will stand alone but will be supplemented in the UK by the new act which will repeal the 1998 and 2003 Data Protection Acts. In this blog “GDPR” means GDPR and DPA2018 taken together.
GDPR becomes law on 25th May 2018, does all of this have to be in place by then?
Well yes and no. Technically yes because it will be the law of the land but in reality unlikely. The ICO has stated “GDPR compliance will be an on-going journey”; and that they will be “proactive and pragmatic” about the “real world” practices find themselves in. If you are already following good practice under the DPA 98 and are taking reasonable steps to implement GDPR using guidance, such as the BMA’s or this blog its unlikely the ICO will be on your doorstep on 26th May, if for no other reason than they don’t have the requisite 10,000 inspectors. You will however need to have at least started a plan and that’s where this blog comes in, to help GPs and their practice managers with that plan. I’m aiming, providing my career isn’t destroyed by the GMC in the meantime, to produce a weekly blog, each one focussing on pragmatic practical stuff that we GPs need and crave.
Next week – the low down on DATA PROTECTION OFFICERS.
*don’t just track it, have your say, use the web link to post comments that MPs and the Lords will read, its your opportunity to influence things.
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The BMA advice of February wil need to be updated www.bma.org.uk/.../medical-information-requests-from-insurers
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Hi, We have been having a little difficulty with SOME solicitors who are refusing to pay our fee despite them sending us their purpose for the client ie to persue a legal claim.
Most have complied but we have two solicitors in particular and below is a typical response from them? Have you any advice as we are now in a Mexican standoff situation. Any advice would be appreciated.
"I write further to our telephone conversation yesterday afternoon.
In response to your request for a fee in order to provide us with copies of our client’s health records, we refer to the British Medical Association (BMA) Guidance ‘Access to health records Updated to reflect the General Data Protection Regulation’ from May 2018 and the following sections, in particular:-
4. Subject Access Requests
A request by a patient, or a request by a third party who has been authorised by the patient, for access under the GDPR (and DPA 2018) is called a subject access request (SAR). Rights of access are not confined to health records held by NHS bodies. They apply equally to the private health sector and to health professionals’ private practice records. Subject to the conditions explained in this guidance, individuals have a right to apply for access to health records irrespective of when they were compiled…
A patient can authorise a solicitor acting on their behalf to make a SAR. Health professionals releasing information to solicitors acting for their patients should ensure that they have the patient’s written consent. Solicitors provide the patient’s written consent. The consent must cover the nature and extent of the information to be disclosed under the SAR (for example, past medical history), and who might have access to it as part of the legal proceedings. Where there is any doubt, health professionals should confirm with the patient before disclosing the information. Should the patient refuse, the solicitor may apply for a court order requiring disclosure of the information.
A standard consent form has been issued by the BMA and the Law Society of England and Wales (to follow). While it is not compulsory for solicitors to use the form, it is hoped it will improve the process of seeking consent. (The form is suitable for use in England and Wales).
A common enquiry to the BMA is whether a patient’s original medical records can be sent to a solicitor. While the GDPR entitles the applicant (or their solicitor) to be supplied with a copy of the health record it does not entitle them to be supplied with the original record. The BMA strongly recommends that health professional do not send original notes and records to solicitors (or any other external parties) because of the potential detriment to patient care should the records be lost.
4.8 Can a fee be charged?
Initial access must be provided free of charge.
For further requests for the same information, a ‘reasonable fee’ can be charged to cover
A ‘reasonable fee’ can also be charged where the request is ‘manifestly unfounded’ or ‘excessive’.
The circumstances when a fee can be charged for access to health records are likely to be rare and further advice should be sought on specific cases where it is believed that charging might be justifiable.
You will note that our request for copies of our client’s health records has been made in accordance with this Guidance, and that it provides that ‘Initial access must be provided free of charge’.
We look forward to receiving copies of our client’s health records.
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Who on earth thinks that GP Practices can afford to pay for postage of copy notes to Insurance Companies and Solicitors free of charge. One set of notes posted off last week cost the Practice £13. Sheer madness and this should have been sorted out by the BMA, LMC, GMC before we are all losing money
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