The Office of the Public Guardian (OPG) has released new guidance to the NHS regarding requests by deputies or attorneys to see the donor's medical records.

The OPG have stated that access should be granted to this information if the person making the request 'needs the information to act properly' and where the disclosure is 'justified in the patient's best interests and the public interest'.

Under the Freedom of Information Act (and supplemental legislations) individuals in the UK have the right to request information being held about them, whether this be medical or any other personal information. This authority did not extend to those acting under powers or attorney or court appointed deputies. The Information Commissioners Office, as part of this review, indicated that it was appropriate for information of this nature to be accessible by individuals with authority to manage a person's affairs and so supported the extension of this authority to attorneys and deputies.

The guidance from the OPG comes about as a result of deputies and attorneys being unable to determine whether or not actions are actually in the best interests of the donor, particularly in cases where decisions regarding levels of care are being decided. Knowledge of an individual’s medical history can be important when trying to understand what they may or may not wish to happen to them in the future. It is also particularly significant where professional attorneys or deputies are appointed who may not have personal knowledge of the donor’s history.

The OPG also went one step further and stated that medical records should be provided to deputies and attorneys for financial affairs as well as those who have authority for health and welfare decisions. This is quite an interesting clarification and aims to remove a barrier faced by financial attorneys and deputies, particularly as medical records are usually key when implementing lifetime tax planning or putting in place insurances on behalf of the donor.

It should be noted however that there is an onus on the NHS or other body to confirm that the authority produced is valid before releasing highly personal and sensitive information. They can do this by carrying out a search of the OPG’s register to ensure that the authority remains valid and has not been revoked or replaced. They should also verify the attorney or deputy’s identity before releasing information.

Please contact Ashley Minott if you would like to discuss powers of attorney on 01494 893518.