PI Brief Update

Does the DPA 2018 Protect the Patient? - Dr Mark Burgin

21/12/22. Dr Mark Burgin argues that the DPA 2018 is a new source of revenue for legal practitioners and both claimants and defendants should ensure that they have the best advice.

A recent unreported case was brought by a patient against their general practice to order removal of an incorrect entry. All parties agreed that the entry was incorrect but the defendants initially argued that it could not be changed. Some 10 years after the process started the claimant’s case failed and costs were awarded against them. Does this mean that the DPA 2018 fails to protect the patient from incorrect entries?

This article will look at some of the options available to the patient and the limits of the DPA 2018. Many practices now allow their patients access to their own records. This was due to be rolled out nationally in November 2022 but was stopped due to concerns that patients will start legal cases against their GPs. There is significant confusion about the DPA 2018 and how it should work.

Where there is confusion there is a risk that the processes will not work as intended. GPs are not experts in the DPA 2018 and their legal advisors do not understand the way that GPs process data. There are obligations upon GPs which stop them from making requested amendments if they are considered unwarranted. As an expert who has summarised 10000 medical records I am aware of both the restrictions and the way around them.

The patient summary

All GP computer systems can now automatically generate a patient summary which is sent with each referral to a specialist. The same document is used to provide information for legal cases and insurance claims. The patient summary used to be called the Past Medical History but there is no agreement as to the correct format.

In general patient summaries are made up of a series of READ coded entries with a short note to expand upon the code. The choice of codes is often made by a non-medically qualified individual and based upon a review of previous records, summaries in hospital letters and comments. The result is often less than satisfactory and can contain serious errors.

The patient summary becomes part of the general practice records but is really a report based upon those records. Old patient summaries are often removed from the records and (incorrectly) deleted although copies remain part of the letters to specialists. In the unreported case the incorrect entry had been widely circulated and many specialists had in turn referred to the entry in their own letters to the claimant’s distress.

The GMC wrote in 2013 71 You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. a You must take reasonable steps to check the information is correct. b You must not deliberately leave out relevant information.

The Information Commissioners Office

The ICO has a number of highly effective processes which assist those navigating the DPA 2018. There are excellent letter templates on the website and there are knowledgeable call handlers. The ICO is the best place for enforcing removal of an incorrect entry from the medical records. It is not a good idea to ask the court to make a ruling to force the general practice to take actions.

The court has a power to order an action, but the claimant must understand exactly what needs to be done. As GP records are very complex the claimant is likely for instance to ask for the entry to be redacted rather than changes to the patient summary. They are likely to ask for an entry in the patient summary to be removed rather than corrected. Both of these are not possible and likely to be in breach of the DPA 2018 as well as GMC GMP 2013 (above).

The ICO can work with the patient and the practice to ensure that both sides comply with the DPA 2018. A document can be inserted into the records but this will not prevent the practice from sending copies of the incorrect entry to specialists. The ICO has significant powers and funding to enforce breaches of the DPA 2018 even when they have not been correctly pleaded. This can reduce the risk of something going wrong legally.

DPA 2018 and GDPR

The DPA 2018 includes provisions to ensure the accuracy of any personal data. These provisions include a duty to check the accuracy and record the source of that data. This is a common problem in patient summaries where the summariser may not be a doctor and may not understand a complex entry. There is a duty to keep the summary up to date which includes replacing entries which become incorrect.

Where a previous entry is found to be in error then there is a duty to clearly identify it as a mistake. For example if a previous summary contained the mistake simply leaving it out may sufficient. Where the records include opinions rather than facts there is a duty to record it as an opinion and any changes to the underlying facts.

Where a person wants the data rectified there is a duty to consider the challenges. These challenges should be recorded as a matter of good practice but the GP does not have to make any unwarranted changes. In practice changing a READ code will occur rarely but alterations to the short notes attached that READ code will be more common.

Conclusions

Although the unreported case did not go as well as the claimant had hoped the evidence is that the DPA 2018 provides excellent protection to patients. The claimant will usually be better advised to follow ICO guidance than consider an action in court. The procedures are less rigid at the ICO and they have a wider range of remedies. The ICO has a different system of costs which protects the claimant from the risks of a court process.

GPs may be concerned that despite their best efforts the defendant GPs were unable to prevent this case from going to court. It is not untypical to have over 10 years of work to attempt resolution and still suffer stress and anxiety of a court case. Early instruction of a medical expert with expertise in medical records summaries often saves substantial costs both in time and money.

In the case the arguments presented were persuasive and the practice did agree to amend the patient summary, so the claimant got one good outcome. The lesson is that a claimant who believes that their patient summary is incorrect may not be stopped by solicitors declining to take their case, repeated efforts by the practice to find resolution, experts who give negative reports and letters from the defendants warning them that they will lose everything.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin is happy to accept claimant and defendant referrals can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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