GDPR and medical records
I recently looked at the case of Beardmore v Lancashire County Council where the court allowed recovery of medical agency fees (limited to £30 in addition to the direct costs) for obtaining medical records in an EL/PL Portal claim.
These records were presumably obtained by the medial agency from the GP/hospital under the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 which prescribe a maximum fee by the holder of the medical records of £50 to include photocopying and postage for access to medical records.
The judgment in that case made no reference to the General Data Protection Regulation (GDPR), presumably because the records were obtained before this regulation came into force (on 25 May 2018).
Less than two weeks ago the Information Commissioner’s Office (ICO) posted a blog advising that it was reasonable for solicitors to use GDPR to obtain clients’ medical records. The GDPR provides that the holder of medical records must process a request for such records free of charge and within one month.
If solicitors can obtain medical records free of charge relying on GDPR, it is difficult to see how a decision could be justified to instead make the request under the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 and incur a fee in the process.
If that is correct, there should, in future, be no claims by claimants for the direct costs of obtaining medical records in personal injury claims.
This, in turn, raises the question of whether the continued use of medical agencies for this task is justified. It might be argued that in non-fixed fee cases a medical agency can obtain the records more cheaply (at, say, £30) than if the fee earner undertook the task. It is less easy to see how this would continue to be justified in fixed fee cases where the medical agency work is clearly undertaking work that is of a fee earner nature.
Put another way, in Beardmore the judge concluded that the “appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records”. If the records can be obtained free of charge by the solicitors using GDPR, what justification is there for incurring any fee in a fixed costs matter? Expect pressure for CPR 45.29I (2) to be amended.