Gardaí seeking patient notes

Hilda O’Keeffe

by Hilda O’Keeffe, Partner,
Comyn Kelleher Tobin Solicitors,
Medisec Panel Solicitors

CONFIDENTIAL INFORMATION

As a GP you have a duty not to disclose confidential or personal information, unless you have your patient’s consent or the disclosure is permitted by law.

In general, a patient’s consent is required to release confidential medical information to the Gardaí.

There are, however, certain limited circumstances where the public interest in disclosing information outweighs the patient’s interest in preserving confidentiality, or the disclosure is required by law.

 

LEGAL CONSIDERATIONS

  1. Medical Council Guidelines
    In summary, paragraph 29 and paragraph 31 provide that:
  • Confidentiality is central to the relationship of trust between a patient and doctor.
  • Sharing of patient information is sometimes appropriate in limited circumstances.
  • Before deciding to disclose information, be clear about the purpose of the disclosure and have either the patient’s consent or another legal basis which permits disclosure.
  • When disclosing information as required by law or in the public interest, inform patients of the disclosure, unless this would cause them serious harm, or would undermine the purpose of the disclosure.
  1. Data Protection and Freedom of Information Legislation
    The basic principles of Data Protection/Freedom of Information legislation require you to protect the medical records of your patient securely and to only release sensitive personal data with the explicit consent of the patient or in certain other limited circumstances.

    The exemptions which permit disclosure are set out in Alison Kelleher’s article on Confidentiality.

    It is very important to be aware that these exemptions do not place an obligation on you to make the disclosure, but rather permit the disclosure to the Gardaí.

    The Information Commissioner guidance provides that you have “discretion to release personal information to a third party only in exceptional circumstances where, on balance, he or she is of the opinion that the public interest in disclosure outweighs the right to privacy of the individual concerned.”

  2. Memorandum of Understanding (MOU) between HSE and DPP
    This is an arrangement which only applies to GMS patients, where the HSE is the Data Controller of the patient’s records and the disclosure relates to the provision of records to An Garda Síochana to assist in the prosecution and investigation of potential offences. The Memorandum is “intended to assist the HSE and the DPP to balance the duty of the HSE to protect confidentiality of the information it holds with the duty of the DPP to access material relevant to criminal proceedings”. Consent of the patient is required to release any medical records under the MOU.

    Because of the additional safeguards the MOU affords, if appropriate, the MOU should be the preferred method of release to the Gardaí.

    Any request for release of information to the Gardaí under the MOU should be notified to the HSE Office of Legal Services.

Scenario

During a busy afternoon surgery, you are informed that a member of An Garda Síochána is at reception and wants to speak to you. The Garda is seeking a copy of the clinical records of your patient, who is being held in custody. The Garda explains that the patient has allegedly committed a serious crime, which has resulted in harm to another person.

 

What should you do?

If the Garda does not have a Court Order and there is no immediate threat to anyone, it would be reasonable to refuse the request and inform the Gardaí accordingly. The refusal should be documented in the notes. If the patient’s consent is not forthcoming, the notes should not be released, unless the Gardaí produce a Court Order directing release of the notes.

 

Practical advice and tips

  • Request official identification.
  • Consider your duty of confidentiality to your patient and the balance between the individual’s right to privacy and the need to investigate offences.
  • Seek a copy of the original Court Order. If a Court Order has been issued, you are obliged to release the records specified in the Order.
  • If no Court Order is available, seek an official letter of request for the specific records signed by a Garda Sergeant on the Garda Síochána’s headed notepaper prior to seeking your patient’s consent.
  • Retain a copy of the request and the response on the patient file.
  • Establish whether the patient is a GMS patient. If so, inform the Garda that you intend to refer the request to the HSE Freedom of Information Officer.
  • Where the patient is a not GMS patient, the GP is the data controller and the consent of the patient should always be sought by the GP.
  • If the GP is unable to obtain consent, the GP should:
  • clarify if the information can be obtained in an alternative manner;
  • establish the purpose of the request;
  • document the patient’s reason to refuse consent;
  • carefully consider whether on balance there is a valid reason to release the records without the patient’s consent, e.g. Court Order, incapacitated patients and required in their best interests, legislative exceptions such as notifiable diseases, investigation of an offence or the public at risk of serious harm;
  • keep in mind that pending prosecution, the patient is still presumed to be innocent and you should not release notes or records unless consent from the patient or their solicitor is received in writing.
  • If on balance, in the rare circumstances that you determine that the records should be released without a Court Order and you have taken legal advice before doing so, the patient must be informed of the decision to release the records.
  • If in doubt, seek advice from Medisec.

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