News Flash :Slow disclosure of medical records under DPA /GDPR

In a recent care case, medical records of one of a later joined party was requested from her GP by the her solicitor with appropriate authority.  The GP replied that under GDPR they were entitled to 42 days within which to respond.  The mental health of the party was in question, and the proceedings were delayed (there were other minor reasons for delay too).

S54 DPA 2018  states Meaning of “applicable time period” is as follows:-

(1)  This section defines “the applicable time period” for the purposes of sections 45(3)(b) and 48(2)(b).

(2)  “The applicable time period” means the period of 1 month, or such longer period as may be specified in regulations, beginning with the relevant time.

S45 refers to the right of access by the subject, and S 48 refers to informing of the grant or refusal.

In the current case the GP stated 42 days but I can find no reference to 42 days in either the act or  the EU directive, or other regulation, but 28/42 days may be a delay too long in any event.

FPR provides some guidance as to disclosure.  (Formerly subpoena ad duces tecum) FPR 24.2 (1) reads:-

Witness summonses

24.2.—(1) A witness summons is a document issued by the court requiring a witness to—

(a)  attend court to give evidence; or

(b)  produce documents to the court.

Rule 24.3 et seq recite the procedure etc

See also FPR 21.2 (derived from CPR 1998 r31.17).  It is of relevance, but note the words in bold, it reads:-

21.2.—(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2) The application—

(a)  may be made without notice; and

(b)  must be supported by evidence.

(3)  The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs.

(See also the helpful footnotes to r21 & 24 in the Red Book, and including SCA 1981 s 34)

If medical records are needed quickly, especially if there is a listed hearing approaching, an application pursuant to FPR r24 may be useful.  Whilst most GP’s or their practice manager would not want to go to court, the above may be a useful sledge hammer to crack the nut, and disclosure may be produced before any ordered date to avoid court attendance, the order being suitably worded for that eventuality. 

In my experience busy GP’s have always been slow in producing medical records, the excuse being resources.  But CA s1 (2) states delay is likely to prejudice the welfare of the child and that has to be remembered.  The alternative of reciting a preamble in the order that the judge requests disclosure by a certain date may not have the same desired effect.