The Office of the Public Guardian published guidance last year for NHS staff confirming that individuals holding either a Lasting Power of Attorney or a deputyship in England and Wales should be able to access medical records for the purposes of making best interests decisions on behalf of the donor.
NHS staff should be ready to share the medical information in a “timely manner” says the guidance. Attorneys need to be able to make decisions in P’s best interests as their legal representative and they are unlikely to be able to do so without P’s medical records, says the OPG.
The guidance notes that there are no specific statutory provisions enabling a third party to exercise subject access rights on behalf of an individuals who does not have the mental capacity to manage their own affairs, the Information Commissioner’s Office advises that “it is reasonable to assume that an attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority”.
The OPG explain that data controllers (the organisation) will need to assess the validity of the request and explain that where NHS and local authority staff wish to seek confirmation that the person requesting the information is an attorney or deputy, they can submit a request to OPG to search their registers. If the request is urgent, OPG can conduct a rapid search of its register. The OPG has listed a set of examples of when a rapid search is required of the register – and they range from moving a person out of hospital care to an alternative setting to ascertaining best interests treatment decisions for an individual who is in hospital.
The guidance also provides email templates for use when corresponding with the OPG and notes regarding whether the request is Covid-19 related or for safeguarding purposes. OPG aim to respond to urgent requests within 24 hours, Monday to Friday. Requests made over the weekend will be dealt with on Monday as a priority.