Common Law Access to Medical Records
| Date | 01 January 1996 |
| Author | Dermot Feenan |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02068.x |
| Published date | 01 January 1996 |
Common
Law Access
to
Medical Records
Dermot
Feenan”
Seventeen years ago, Gerald Dworkin asked in this journal whether, apart from
discovery proceedings, a patient has a common law right to see her medical
records.1 The Court of Appeal has now for the first time answered this question
-
affirmatively
-
in
R
v
Mid Glamorgan Family Health Services Authority
&
Another, ex parte Martin.*
In a unanimous decision, the court recognised that a
health authority, in common with
a
private doctor, is under a common law duty to
allow an individual access to her medical records except where, in view of
potential detriment to her
as
a result of such access, it is not in her best interest to
do
so.
Although the novel recognition in
Martin
of a common law-based right of
access is to be welcomed, the decision maintains the paternalistic tradition of
privileging medical control over personal health information
-
exemplified in
Martin
by the increasingly problematic
use
in novel medical law cases of a ‘best
interests’ approach, coupled with a broad exception (to the newly recognised
access right) framed in terms of mere detriment to the patient.
Mr Martin’s request for his notes
Trevor Martin, 45-years-old at the time of trial, had,
as
an adolescent, received
psychiatric treatment from doctors employed by the then-known Mid Glamorgan
Family Practitioner Committee (now, Mid Glamorgan Family Health Services
Authority). Twenty-five years on, he wanted to make sense of his treatment, to
understand a decision to remove a social worker who had been involved in his care
and who he said he had loved, and to move on psychologically. He believed that
examination of his medical records would help. The records had not been stored
electronically, otherwise he would have been entitled to access to them under the
Data Protection Act 1984, subject to the Data Protection (Subject Access
Modification) (Health) Order 1987.3 Since the records were made before
1
November 1991 he was also unable to avail himself of the statutory right of access
to medical records established by the Access to Health Records Act 1990.4
Since the latter part of the 1960s Mr Martin had made many requests for access
to his medical records. The South Glamorgan Health Authority, who
as
holders of
part of
his
records were named as second respondents, ultimately refused access on
the basis of advice given to it by a consultant psychiatrist
-
who had not seen Mr
Martin
-
that disclosure would be detrimental to him and not in his overall best
interests. Both health authorities claimed an absolute right to control access to the
records, which, in the view of the Mid-Glamorgan Family Health Services
Authority, was subject only to legislation and the Rules of the Supreme Court. Mr
*
Independent scholar.
1
2 [I9951 1
WLR
110.
3
SI
1987,
No
1903.
4
Dworkin, ‘Access
to
Medical Records -Discovery, Confidentiality and Privacy’
(1979)
42
MLR
88,
at
90.
1
November
1991
was the commencement date
for
the Act,
s
12(2).
8
The Modern
Law
Review Limited
1996
(MLR
59:l.
January). Published by Blackwell Publishers,
108 Cowley Road,
Oxford
OX4
IJF
and 238 Main Street, Cambridge, MA 02142, USA.
101
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