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6 January 2022 | Comment |

Office of the Public Guardian issues new guidance on the disclosure of medical records to attorneys and deputies

The team considers the recent guidance issued by the Office of the Public Guardian in relation to requests for medical records and the hurdles which attorneys and deputies can face in relation to Subject Access Requests.

The Office of the Public Guardian (OPG) has recently published guidance around disclosure of medical and care information to attorneys and deputies to enable them to make best interest decisions.

There are a variety of justified reasons why a Property and Financial Affairs attorney or deputy might require sight of a protected party’s (“P”) medical records.

They might be necessary for non-contentious issues, for example for an expert opinion on P’s capacity to manage their property and affairs or to understand the implications of appointing an attorney (a prerequisite requirement of the Court of Protection is for a prescribed form medical capacity assessment to be undertaken).

Access to records might be required for a variety of other more contentious reasons, such as to make a will where P lacks capacity, known as a “Statutory Will” application (to establish P’s “testamentary capacity” otherwise known as the Banks v Goodfellow test from the 1870 case of the same name). Similarly, medical records might be crucial in establishing the merits of a challenge to the appointment of a Property and Financial Affairs attorney based on P’s lack of capacity to sign a lasting power of attorney at any given date.

The Mental Capacity Act 2005

Indeed, the five key principles of the Mental Capacity Act 2005 govern how the OPG and other authorities (including health and social care agencies) support individuals who lack mental capacity. These are that:

  • every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  • people must be supported as much as possible to make a decision before anyone concludes that they cannot make their own decision;
  • a person should not be treated as incapable of making a decision because their decision may seem unwise;
  • anything done for or on behalf of a person who lacks mental capacity must be done in their best interests; and
  • anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms.

This includes an obligation on institutions in assisting attorneys deputies in the exercise of their duty in supporting P, by providing relevant information in a timely manner.

As set out above, there are various reasons why a Property and Financial Affairs attorney or deputy might need P’s records to make best interests decisions on P’s behalf. Using the Statutory Will example, the prospects of such an application might only properly be considered upon a review of P’s medical records. If P’s attorney or deputy considers that P has been coerced into making a will at a time when they might have lacked testamentary capacity, then no doubt the records will help determine whether it is in P’s best interests to pursue the application any further (principle 4).

General difficulties an attorney or deputy will often face

As solicitors and representatives for vulnerable clients and indeed the wider legal community will well know, obtaining medical records is not always as straightforward as it could or perhaps should be.

Indeed, many institutions will often refuse to recognise or even understand the authority of an attorney or deputy even if presented with evidence of such authority in the form of the lasting power of attorney or deputyship order.

There is a general misunderstanding not only in respect of an attorney or deputy’s role, but also an additional unnecessary weight given to the fact that a Property and Financial Affairs appointment does not extend to health and welfare. The latest guidance from the OPG echoes the Information Commissioner’s Office advice 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”.

A good example of this is a request by an attorney or deputy to the NHS for continuing healthcare funding assessments to ensure that P has been properly assessed for NHS funding that might be available. Such a request is clearly so relevant to P’s finances and obligation for care fees but, without either a lasting power of attorney or deputyship order for Health and Welfare (the latter of which are less commonly ordered than a Property and Financial Affairs deputyship order), an attorney or deputy will often be told that they do not have permission to access such information when, clearly, they do.

On one hand, one can understand an institution’s reluctance to produce P’s personal information given the General Data Protection Regulations (“GDPR”). There must be a protocol to handle requests for such sensitive information with checks in place to ensure the authority of those requesting. Sadly, recent high-profile stories, including, in particular, Sienna Miller’s claim that the Sun illegally tried to access her medical records, also do not help.

However, the common misconception that an attorney or deputy requires additional legal authority to obtain such information can come at significant expense to P. In extreme circumstances, P’s representative might even contemplate the necessary application to compel an institution to provide relevant information together with an order the costs of such an application be met by that institution. I have previously recovered significant sums from just such an institution for the costs incurred by P part of which was due to the institution’s failure to understand or recognise a deputy’s authority.

Ultimately, a line needs to be drawn as to how satisfied an institution must be that a request for information is genuine before they are able to release it. It is therefore little wonder why the OPG has sought to reaffirm the position that an attorney or deputy should be provided with access to medical records.

The guidance also provides a useful link for institutions to follow should they wish to seek confirmation that the person requesting the information is an attorney or deputy from the OPG direct. No doubt a representative might wish to highlight this guidance and link if any difficulties are experienced and hopefully medical records or other requested documents are made more readily available as a result, if difficulties do arise.

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