Category Archives: Insight Article

The simple answer is yes, you do have the right to see them. Under data access laws, you can ask to see your medical notes anytime. Practices up and down the country have reported a marked increase in the number of requests since the introduction of GDPR in May 2018 by patients who want to know exactly what notes are being kept by their doctors.

Why would you want to look at your notes?

Fundamentally, what happens to your body or your mental health is your affair. You have every right to know what your medical team has recommended, what notes are being kept and how those notes affect how your health is managed by your GP, medical professionals or mental health experts. The UK Information Commissioner’s Office has issued a set of advisory notes to help ordinary people understand their access rights and whether your GP can refuse to let you see your medical records.

The ICO’s advice in brief

A GP cannot query your reason for requesting access to your personal medical records and cannot refuse access to your information. However, they can ask you or your representative to clarify the information you want to access and only show you information relevant to your specific request. So, for example, if you have been diagnosed with cancer, you can ask to see all the notes pertaining to the diagnosis and treatment of your condition.

Most records are kept online, so medical professionals can allow the patient digital access to their records through an online portal if requested. That information must be safeguarded so that it cannot be ‘hacked’ by using digital encryption, for example.

What if the notes are for someone else?

To stop anyone from getting unauthorised access to confidential patient notes, there are certain safeguards in place, and medical professionals will be cautious about giving out any information unless it’s to the patient themselves. However, a patient can ask a close family member or legal representative to act on their behalf. The GP may ask for clear evidence that the patient has given their representative the right to access their records. They will refer back to the patient if they believe that more information than necessary is being requested.

Suppose they are still concerned about the level of access the patient’s representative is requesting. In that case, GPs can choose to provide the patient with the information directly rather than giving it to the representative. The patient can then decide for themselves just how much of that data they pass on to their representative.

Medical professionals have the right to refuse a request if they believe it could cause serious physical or mental harm to the patient or if the information you requested relates to someone else. You do not have their expressed permission to access the data.

If you have asked for medical data and your GP has refused, you can then pursue the matter further, either through the practice manager or by making a complaint to the Information Commissioner.

Often, medical information is requested by a patient who may feel that the treatment they have received has contributed to a deterioration of their condition or by a relative who may have questions as to how a member of their family is being treated.

Suppose you want to see your medical records and are being denied access by your medical care professionals. In that case, you may have to consider talking to a lawyer to help you resolve the situation.

Contact James McMullan today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Have you considered who would manage your affairs and make decisions if you have an illness or accident that leaves you incapable of looking after things yourself? A Lasting Power of Attorney (LPA) enables you to appoint someone you trust to look after your financial affairs or your health and welfare with minimum effort, delay and expense.

The application process has become much simpler since an online system was introduced a few years ago, which has encouraged many more people to prepare an LPA, with digital applications soaring from 14,000 in the year to March 2014 to 164,000 to March 2017. Paper applications have also risen, and almost 560,000 registrations were made in the year to March 2017, compared with 200,000 in March 2012. But while easier to make, they are also easy to abuse if safeguards are not implemented.

Unfortunately, that is demonstrated by reports of a significant increase in the number of investigations into the actions of attorneys and deputies who have been appointed under an LPA. These have increased by more than 40% in the past year – 1,729 investigations were carried out in 2017-18 – up from 1,199 the previous year, according to the Office of the Public Guardian, which is responsible for administering LPAs.

While the DIY process makes the process more accessible, professional guidance can make the difference in ensuring adequate control on those acting as attorneys to help avoid mistakes or, in the worst case, abuse.

An LPA is a valuable tool, but the right safeguards must be in place, and everyone needs to understand what is involved and the responsibilities it brings.

Understanding Lasting Powers of Attorney

Why have one?

You may want to allow someone else to manage your affairs for many reasons. While the obvious situation is if you are older or ill, an LPA can be useful if someone is undertaking long-term travel or working overseas for a corporate employer.

Using a Property & Financial Affairs LPA, you can appoint someone to look after your financial affairs on your behalf. You can also make a Health & Welfare LPA, which can be used to appoint someone to deal with issues such as where you live and medical treatment if you become mentally incapable.

Without an LPA, if someone becomes mentally incapable, whatever their age, their financial and personal affairs must be managed by a deputy appointed by the Court of Protection. Generally, this makes for a slow and potentially expensive business for families, who must apply to the Court for permission to undertake transactions.

How do they work?

Once an LPA has been made, it must be registered with the Office of the Public Guardian before attorneys can act, with a fee of £82 per LPA. Once registered, the LPA can be submitted to any institution, such as a bank or utility provider, under a financial LPA or to health or care professionals under a health & welfare LPA, enabling the institution to deal directly with the appointed attorneys.

An attorney under a health and welfare LPA can only decide on your behalf if you cannot decide for yourself.

In the case of financial affairs, once the LPA is registered, your attorneys will have the power to enter into any transaction unless you have specifically forbidden it, so they can deal with investments and write cheques. If you are mentally capable, the attorney should only do what you authorise them to do – for example, if you had physical issues that made it difficult to attend a meeting or sign documents. You instructed the attorney to act on your behalf. If you become mentally incapable and are no longer capable of authorising or consenting to the attorney’s decisions or actions, the attorney can make decisions and do things on your behalf. However, there is no cut-off point at which you are presumed to be incapable; capacity is decided on a decision-by-decision basis, and the attorney must do everything practicable to help you arrive at your own decision on every occasion.

Three steps to LPA confidence

1. Choose attorneys carefully
   
   An attorney has far-reaching powers, and problems are likely to arise if they do not appreciate their role or if there are insufficient checks and balances in the process.

   Being granted authority may draw some attorneys into abuse of their position with intentionally fraudulent activity, but it is just as likely to be a misuse of power by family members, who justify their actions as being acceptable because they are making use of assets that will come to them in the end, or because they feel it is reasonable to have a financial contribution for what they do for their relative. Before appointing an attorney, think about how well they look after their own finances, how well you know them and how sure you are that they will make the right decisions for you. Even where an attorney acts with the best intentions to respond to the trust placed in them, if they are disorganised or indecisive, this can impact their ability to make good decisions, just as much as if they are self-serving.

2. Make attorneys accountable

   You can appoint two attorneys and require that they are both involved in each decision, although that can complicate transactions. Another option is to appoint, alongside a family member or friend, a professional attorney whose job it would be to undertake regular checks on how matters are being handled. Alternatively, you can include a requirement within the LPA for the attorney to consult with a third party if a decision exceeds a given threshold or for specific assets. This would allow you to restrict the sale of property or investments without the input of a professional, for example. At the very least, a clause within the LPA appointing a third party to check whether attorneys act within the scope of their authority annually is a good idea. Even where there is no specific requirement within the LPA, the Office of the Public Guardian can ask an attorney to account for their dealings with any money they handle, and so attorneys should be advised to keep financial statements and receipts carefully.

3. Give good guidance
   
   As well as careful selection and ongoing checks on attorneys, it is important that an attorney has guidance to help them understand their fiduciary and statutory responsibilities and how to satisfy them at the outset.

   They should appreciate how their role should be performed regarding the Mental Capacity Act 2005 Principles and Code of Practice, particularly in how they consult with the donor of the LPA and help the donor to make their own decisions, if possible. They should also be made aware that they must not benefit from their position or use money or property for their own benefit, whatever their relationship to the donor, and even where they imagine it would not pose a problem if the donor were not mentally incapable. Recognising that they may need to get expert advice, whether legal, financial or otherwise, is also important if they are to act within the reasonable standards of care and skill required by an LPA.

For further advice and information, contact James McMullan today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

If you are 18 or over and have mental capacity, you can create a lasting power of attorney (an LPA), which can be used to deal with such situations.

An LPA will ensure that the people you appoint as your attorneys can care for your health and welfare needs and your financial obligations. In the event of a recovery, you can assume control of your affairs again without terminating the LPA.

You can even use a property and financial affairs LPA while you have mental capacity. For example, you could authorise your attorney to make some payments from your account while you are out of the country or to sign certain documents on your behalf.

What is an LPA?

LPAs were introduced by the Mental Capacity Act 2005 (the Act). An LPA is a legal document that allows an individual to appoint one or more persons to act as their agent (i.e., attorney) to help them make decisions on their behalf and in their best interests if they’re incapacitated.

There are two types of LPA:

1. a health and welfare LPA; and
2. a property and financial affairs LPA.

You can appoint the same or different attorneys in each LPA.

If you lose mental capacity, your attorneys can only act under your health and welfare LPA. This type of LPA allows your attorneys to make decisions – yes, you guessed it – about your health and welfare, like whether you should stay in your own home or move into a care home, what medical treatment you should or shouldn’t have, and even down to what you eat, drink and wear.

Conversely, you can choose when your attorneys can act under a property and financial affairs LPA: either with your permission or only if you lose mental capacity. Various financial institutions recognise this type of LPA, allowing your attorneys to manage your bank accounts and investments and even sell your home. You do not need to have a lot of money to make this kind of LPA, and having it would allow your attorney to apply for any benefits you may be entitled to.

LPAs are invalid unless registered with the Office of the Public Guardian (the OPG).

Wouldn’t my family just take care of everything if something happened to me?

Your bank may not give your family access to your accounts if they have not been appointed as an attorney under a property and financial affairs LPA. This could mean they cannot meet your mortgage payments or any other financial obligations you might have. This could have a devastating impact on your family. In that situation, your next of kin must apply to the Court of Protection for a Deputyship order, a time-consuming and expensive process.

Regarding your health and welfare, while it is likely that doctors would discuss any treatment with your family, your family will not have a right to object to treatment. They can only do this if they have been appointed as an attorney. You cannot make an LPA if you no longer have mental capacity. Again, your family must apply to the Court of Protection for a Deputyship Order.

Can I create just one LPA?

Yes. The two LPAs are independent of one another. If you have appointed someone as an attorney for your health and welfare decisions, they will not automatically be entitled to manage your finances. It can be useful to have both LPAs as the attorneys can work together and utilise your finances to provide you with the best care.

How can I change my attorneys?

Once an LPA is created, you can only make a few changes to it. One of the permitted changes includes removing an attorney. However, if you wish to replace an attorney, you must revoke your LPA and create a new one. You will have to pay the registration fee(s) again.

Can I make my LPA without a solicitor?

While creating an LPA without a solicitor is cheaper, you will benefit from taking legal advice before creating such a powerful document giving people the right to make decisions on your behalf.

By obtaining legal advice, you can better understand the decisions an attorney can make on your behalf and ensure that your attorneys understand that they must follow the principles set out in the Act. This can ensure that your attorneys are not misusing their powers.

Further, your solicitor can ensure that any instructions and preferences included in your LPA are acceptable to the OPG. One of the main reasons why the OPG refuse to register an LPA is because someone has inserted a badly written restriction or instruction, which makes the LPA unworkable. If you do not insert anything in these sections, your attorney will be free to make any decision which follows the Act.

Your solicitor can suggest some instructions and preferences to insert that will safeguard you and your assets, e.g., producing annual accounts, restricting the sale of your property, or limiting the value of gifts your attorneys can make from your funds.

Contact James McMullan today if you would like to discuss LPAs and how we can help safeguard your future.

Note: This article is not legal advice; it provides information of general interest about current legal issues.