Can my attorney access my medical records?
The Office of the Public Guardian (the OPG) has recently released guidance to the NHS confirming that deputies and attorneys should have access to relevant medical records of the donor to assist them with making decisions that they are legally authorised to make in the donor’s best interests. This guidance may be particularly helpful where an attorney appointed under a Lasting Power of Attorney for Property and Financial Affairs needs to understand the donor’s medical history in order to decide how to manage the donor’s assets to ensure that sufficient funds are available to meet the donor’s future care needs. The OPG’s advice to NHS organisations is to provide relevant information in a timely manner whilst making sure that the third party making the request is entitled to act on behalf of the donor, for example by making a search of the OPG registers to confirm the status of the third party as a donor or attorney.
Attorneys and deputies need to be satisfied when requesting access to the donor’s medical records that the donor lacks capacity and that the information requested is necessary in order to make decisions in the donor’s best interests. The OPG’s guidance says that NHS organisations should carry out their own assessments as to the appropriateness of the information requests in view of the donor’s lack of capacity and best interests, balancing the donor’s right to privacy with the donor’s best interests and the public interest.
Finally, the guidance clarifies that such requests are separate from data subject access requests (DSARs) made under Article 15 of the General Data Protection Regulations and the Data Protection Act 2018, which allow an individual to request access to their personal data from the data controller. Whilst there is no specific legislation permitting attorneys and deputies to make DSARs on behalf of the donor, the OPG’s guidance shares advice from the Information Commissioner’s Office 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’.