In this article, Ceri Catton examines the General Medical Council’s (GMC) power of disclosure and provides practical tips if you are presented with a request for documents by the GMC.
- What is the role of the GMC?
- What are the GMC’s powers on disclosure?
- What does this mean to you?
- Practical tips
- Conclusion
What is the role of the GMC?
The purpose of the GMC is to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine.
One of the GMC’s main functions is to deal firmly and fairly with doctors whose fitness to practice is in doubt. In determining a doctor’s fitness to practice, the GMC will need to gather information regarding the doctor’s standard of practice. This will nearly always result in a request for medical records relating to a specific patient, or group of patients, where concern has been raised regarding their treatment. If such a request is made, this may throw up a number of potential concerns from a disclosure point of view:
- Does the Data Protection Act apply when responding to any request?
- Do you need to obtain the patient’s consent before the records can be released?
- Should the records be anonymised before they are released?
- Are you only obliged to disclose copies of the records or can the original records be requested?
What are the GMC’s powers on disclosure?
To enable the GMC to carry out its functions in determining a doctor’s fitness to practice, the GMC has a very wide power when requesting disclosure of information. This power is set out in Section 35A (1) of the Medical Act 1983 (as amended) and can require a doctor (except the doctor in respect of whom the information or document is sought) or any other person to supply information or produce any document which appears relevant to the discharge of any of the GMC’s functions.
The Act specifically confirms that when determining whether disclosure is prohibited by any other statutory instrument and, in particular, the Data Protection Act, it will be assumed that the disclosure is required for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) (see sections 35A (4) and (5A) of the Medical Act 1983 and section 35 (2)(a) of the Data Protection Act 1998). This effectively over-rides the usual requirement to obtain a patient’s consent before records can be disclosed.
If a person fails to supply information or produce any document within 14 days of being required to do so under subsection (1) of the Medical Act 1983, the GMC can apply to Court to obtain a Court Order requiring the information to be supplied or the document to be produced.
What does this mean to you?
If the GMC is investigating a doctor employed by you, it has the power to ask you to disclose medical records relating to a patient (or group of patients) treated by that doctor and you can disclose those records to the GMC without needing to obtain the patient’s consent. Further, if you fail to disclose the records within a reasonable time scale and, specifically within14 days of any request, you will risk the GMC solicitors applying for a Court Order to force production of the records potentially with an associated cost order.
Whilst the GMC will usually only request copies of medical records there may be occasions when a request is made for the original medical records. This will need to be determined on a case by case basis. An example of when original records may be required is if it is suggested that key documents are missing from the copy medical records and only production of the original medical records will satisfy the GMC (and the doctor’s) solicitors that there has been full disclosure.
Practical tips
- If original medical records are requested
- Check if it is absolutely necessary to disclose the original records to allow the GMC to carry out its functions.
- If so, take a copy the original records before they are released to the GMC’s solicitors.
- Seek an assurance from the GMC’s solicitors that the original records:
- Will be held securely
- Will be returned to you within a reasonable timescale
- That if you receive an Access to Justice disclosure request relating to the records which have been released to the GMC, and you require the original records to be able to respond to the request, they will be returned to you immediately.
- If copy records are requested, check with the GMC’s solicitors that the records will be anonymised during any subsequent fitness to practice hearing. If assurances can not be made in this regard, arrange for the records to be anonymised before they are released.
Conclusion
The GMC has a wide power to request disclosure of relevant documents to allow it to carry out its functions. This may result in urgent requests for disclosure of a patient’s records (including the originals) which must be dealt with quickly and efficiently to avoid an adverse Court Order being made. If you have any queries regarding such a request or require further advice in responding to a request, please contact Bevan Brittan LLP, your panel solicitors or the NHSLA.