The patient has the right to medical documentation, but is not its owner. What does it mean?

  • The obligation to keep, store and share medical records requires the medical entity to show special attention – emphasizes Agnieszka Wernik of the Ombudsman for Patients’ Rights.
  • We know of a case when an unauthorized person took documents from a medical institution, falsified, and then illegally filled prescriptions on this basis – the expert reminds
  • And he adds: – Remember that the patient has, of course, the right to access the information contained in the medical records, but – as a general rule – he is not the owner
  • Legal clarifications regarding the retention, storage and sharing of medical records have been issued by the Patient Ombudsman in accordance with Art. 33 of the law of March 6, 2018 – Law on entrepreneurs

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Rules for Sharing Medical Records

One of the rights guaranteed by law to the patient to obtain information about his state of health is the possibility of reading the contents of medical documentation – both in electronic form and in traditional paper form.

Agnieszka Wernik of the Office of the Patient Ombudsman reminds you of the most important rules for the provision of the medical file of the patient or of a person authorized by the patient *.

  • Entity providing health services provides medical documentation the patient or his legal representative, or a person authorized by the patient.
  • After the death of the patient, the medical documentation is made available to the person authorized by the patient during his lifetime or to the person who was his legal representative at the time of the patient’s death.
  • Medical records it is also made available to a loved oneunless the sharing is contested by another close person or if the patient objected to it during his lifetime.
  • Medical records can also be shared in other cases specified in the Patients’ Rights Act (e.g. to other medical entities as part of the continued provision of healthcare services).
  • The individual documentation, unless the provisions of the regulations provide otherwise, includes in particular: email address or patient inbox email address to which medical documentation should be forwarded (if made available via electronic means of communication).

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Examples of Violations of Patients’ Collective Rights to Medical Records

Below are examples of procedures carried out by the Patients’ Ombudsman in cases of practices infringing the collective rights of patients to medical records in the years 2021-2022.

  • The violation of the patient’s right to medical records was the storage of some of these records in a dirty and messy basement, partly in damp boxes.
  • Medical documentation (in paper form) has been removed from the medical facility by an unauthorized person.
  • In another case, the Ombudsman for Patients’ Rights established during the proceedings that requests for the provision of medical documentation by electronic means of communication were executed by the medical entity only on the basis of requests submitted in person (after verifying the applicant’s identity and the e-mail address provided by the applicant), which violated the patient’s right to medical records.

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– A decisive moment that made it possible to modify the scope of the procedures in the field of the right of access to medical documentation was the beginning of its transition from paper form to electronic medical documentation (EDM). Thus, it has become possible, among other things, to collect an e-mail address or an electronic inbox of the patient, to which medical documentation can be transferred – explains Agnieszka Wernik.

It indicates that legal explanations regarding the sharing, retention and storage of medical records have been issued by the Patient Ombudsman in accordance with Art. 33 of the law of March 6, 2018 – Law on entrepreneurs.

– These explanations indicate the obligation to secure medical documents in such a way that unauthorized persons do not have access to them. Legal explanations on this subject are available on the website of the Patient Ombudsman – says Agnieszka Wernik.

I stipulates: – The obligation to keep and retain medical records requires the medical entity to exercise special care. We must remember that the patient has the right to access the information contained in the medical documentation, but – as a rule – is not the owner of it.

– That is why a medical institution, by keeping and maintaining medical records, produces documents that will ultimately serve to implement the right to protection of the patient’s health and life. Therefore, the aforementioned particular diligence of the medical entity related to its obligation to keep, store and make available the medical documentation is necessary, underlines the expert.

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Problems with the electronic sharing of documentation

It also highlights the issues that arise in the ongoing process of transitioning medical facilities from paper-based documentation to its electronic form.

– As we move away from paper documentation, there are, among other things, problems with the retention of medical records, if they still remain paper and have not been correctly transferred to computer systems. The Ombudsman for Patients’ Rights is informed that medical records are not properly kept – says the representative of the Office of the MPC.

And he adds: – They are always present too issues related to sharing documentation with unauthorized persons. We know of a case where an unauthorized person not only gained access to documentation, but also removed it from a medical facility, tampered with it, and then illegally filled prescriptions based on it.

– We also reviewed a report of a situation in which a medical entity provided medical documentation, but only on the basis of requests submitted in person, because they were concerned about the effectiveness of verifying the identity of the patient. person submitting such a request – describes the expert.

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Refusal to make medical records accessible remotely

He recalls that the new issues that the Ombudsman for Patients’ Rights will soon be dealing with are precisely linked to various circumstances in which a healthcare establishment refuses to make medical records available remotely for fear of violating the provisions relating to the protection of personal data.

Agnieszka Wernik informs that the MPC – in the most doubtful cases – will issue appropriate interpretations to standardize the practice in this regard. It also lists the basic issues – already reported to the MPC office – which may raise doubts resulting in the refusal to provide medical documents:

  • Doubts about encryption and technical solutions involving file transfer
  • Method of verifying the email address of the person requesting the medical documentation
  • The method of verifying the identity of the person requesting access to medical documentation
  • Processing requests for access to medical documentation by e-mail to traditional correspondence addresses
  • Method of verifying the new data of the person authorized to receive the medical documentation (change of e-mail address, change of correspondence address, change of the telephone number compared to the one previously registered in the medical documentation).

* All information and statements are taken from the remote conference “GDPR and cybersecurity in health” (May 24, 2022).

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