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Published 25 June 2018
In defending personal injury claims, the ability of compensating insurers and their representatives to seek access to the Claimant's medical records is often important in enabling claims to be scrutinised and medical evidence to be obtained.
How has the implementation of the General Data Protection Regulation and the Data Protection Act 2018 affected the ability of compensators to obtain access to those records?
The rights of individuals making Subject Access Requests have been changed, to include a provision which allows a person to access their own personal data (which includes their medical records) at no charge. The question has been raised as to whether compensators should seek to take advantage of this provision.
Prior to the implementation of the GDPR and DPA 2018, compensators and their representatives have sought access to records through sending forms of authority to the Claimant or the Claimant's representatives, inviting the Claimant to return signed copies.
There are two reasons why we have decided to continue to seek records through the use of forms of authority (and not to seek to persuade Claimants to make Subject Access Requests).
First, insofar as the claim is concerned, the Claimant requesting the records through a Subject Access Request would be provided with the records, and therefore would have control over the records provided to us.
Second, and more importantly, asking the Claimant to make a Subject Access Request to disclose certain records, which includes health records is a criminal offence under s.184(2) of the Data Protection Act 2018.
In order to avoid committing a s.184(2) offence, Claimants must have a genuine choice as to whether they provide authority for access to records, and must be able to refuse to sign forms of authority.
As a business, we will continue to seek access to medical records, on cases where this is appropriate, through the use of forms of authority which we invite the Claimant to sign.
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