Legal Cost Specialists

Cost of obtaining medical records

Friston on Costs (Fourth Edition) does not just deal with the big ticket items.

In relation to medical records, the historical position is set out:

“Prior to 25 May 2018, the Data Protection Act 1998 created a qualified right of access to medical records. Delegated legislation made under that Act limited the fee that could be charged for providing medical records, this being referred to as a ‘subject access fee’. The maximum subject access fee for accessing computerised records was £10. The maximum subject access fee was £50 for paper records, but there was a sliding scale based on the number of pages copied”

Solicitors would often obtain medical records via a medical reporting agency.  The medical agency would usually charge an administrative charge in addition to the direct cost of obtaining the medical records from the record holder.  Bills of costs would therefore routinely claim, say, £50 or £80 as an inclusive amount for obtaining the medical records.

The argument justifying the administrative charge by the medical agency was that this was work that would otherwise have had to be undertaken by the solicitors and so the overall cost was no greater, and possibly less, than if the solicitors had obtained the medical records directly.  This argument was routinely accepted by the courts.

The current position as to obtaining medical records is also set out in Friston on Costs:

“Since 25 May 2018, no fee may be charged for providing access to medical records unless the request is ‘manifestly unfounded or excessive’ (see s52(5) and 53 of the Data Protection Act 2018). This is so regardless of whether the records relate to a person who is alive or deceased.”

Why does one still routinely see claims for the cost of obtaining medical records?  Even if it were still reasonable to use a medical agency, now that the records themselves can be obtained free of charge surely the cost of the administrative element is all that should now be claimed (say £20-£30).  Obviously, in fixed costs cases there should be no such claim as the administrative element is covered by the relevant fixed fee.

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