LPA holders and deputies are now entitled to see donor’s medical records
The Office of Public Guardian in England and Wales (OPG) has issued new guidance to the NHS regarding requests for access to the donor’s medical records by deputies or Lasting Power of Attorney (LPA) holders (appointed for either finances or health decisions). Access should be given to disclose this information and assist the attorneys and deputies in acting to make decisions in the best interests of their donors.
The GOV.UK website has released guidance to individuals holding either a LPA or a deputyship, this is especially helpful for those attorneys and deputies appointed only for finance and property decision-making.
What was the problem?
The requirement derives from the Mental Capacity Act 2005 and Code of Practice, which requires that public authorities assist LPA holders or deputies in carrying out their duties, but it also overlaps with data protection law and the ability for third parties to make a subject access request.
Individuals in the United Kingdom have the right under the Freedom of Information Act 2000 to request information held about them, whether this is medical or other personal information. However, this authority did not extend to those acting under the power of attorney or deputies appointed by the Court of Protection.
As part of this evaluation, the Information Commissioners Office decided that it was appropriate for individuals with authority to regulate a person’s matters to have access to such information, and thus supported the expansion of this authority to attorneys and deputies.
Why has it changed?
The new OPG guidance was created as a result of deputies and attorneys being unable to determine whether actions are in the best interests of the donor, particularly when it comes to decisions about levels of care.
Having full knowledge of an individual’s medical history can be important when trying to gain an understanding of what they may or may not wish to happen to them in the future. This is especially important when professional attorneys or deputies are appointed who may not be familiar with the donor’s background.
The attorney or deputy will be able to speak on behalf of the individual who may have lost capacity in these roles. Several of the decisions they may have to make will involve a complete understanding of the person’s medical history to ensure the appropriate steps are followed. This includes both medical and financial decisions made under a Financial Lasting Power of Attorney. For example, deciding whether to sell a property owned by an individual with a brain injury to pay for the residential care home in which they are currently residing or whether there is a possibility the person will improve and be able to return home in the future.
Through the OPG enabling deputies or attorneys to request requests for access to the donor’s medical records it enables individuals to make decisions in the best interests of their donors. This change is a positive act because people who are acting as attorneys or deputies need to know what is going on in the health sphere as holistic management of the affairs of those that are vulnerable is key.
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