Communication of medical records by healthcare professionals

Written on
31 March 2024

Communication of medical records by healthcare professionals: Position of the Court of Justice of the European Union

 

In France, everyone has the right to access all information concerning their health, including their medical records.

 

Article L.1111-7 of the French Public Health Code stipulates that :

“Every person has access to all information concerning his or her health held, in any capacity whatsoever, by health professionals, health establishments, health centers, birth centers, the armed forces health service or the national invalids’ institution, which is formalized or has been the subject of written exchanges between health professionals, in particular examination results, consultation, intervention, exploration or hospitalization reports, therapeutic protocols and prescriptions, monitoring sheets, correspondence between healthcare professionals, with the exception of information mentioning that it has been collected from or concerning a third party not involved in the therapeutic management.

She may access this information directly or through the intermediary of a doctor she designates, and obtain communication of it, under conditions defined by regulation, within eight days of her request at the latest, and at the earliest after a forty-eight-hour cooling-off period has been observed.

(…)

In the event of the patient’s death, access to the patient’s medical file by heirs, cohabitees, partners bound by a civil solidarity pact or doctors caring for a person likely to undergo an examination of genetic characteristics under the conditions set out in I of article L. 1130-4 is subject to the conditions set out in the last two paragraphs of V of article L. 1110-4.

On-site consultation of information is free of charge.”

In the event of non-compliance with these obligations, you can refer the matter to the CADA (Commission d’accès aux documents administratifs) for an opinion, with a view to obtaining the requested documents.

Finally, an appeal to the Administrative Court (for public establishments) or the Court of Justice (for private establishments, or any self-employed healthcare professional) is also possible if the applicant does not obtain a copy of the requested documents.

This is the state of domestic law.

A question has recently been referred to the CJEU for a preliminary ruling on the communication of medical records and the cost of this communication. – Judgment of October 26, 2023 (case C 307/22).

In this case, a German patient requested a free copy of his medical records from his dental surgeon.

The healthcare professional consented to the delivery of this copy subject to payment of the reprography costs, as provided for under German law.

German law is similar to French law in this respect, with practitioners obliged to make medical records available to their patients, archiving them for 10 years, and patients having the right to request access to their records on paper or electronically.

The patient is required to pay the cost of reproducing the medical record.

However, this regulation predates the RGPD, giving the patient the right to challenge the legality of the payment of reprographic costs.

Preliminary questions were then referred to the CJEU.

 

1/ RGPD PROVIDES FOR A RIGHT OF ACCESS TO DATA HELD IN ORDER TO RECOGNIZE AND VERIFY ITS LAWFULNESS.

However, in this case, the access request had an objective other than that posed by the RGPD: to bring the practitioner’s liability into play.

In these circumstances, are the right of access provided by the RGPD and its consequences applicable to the facts of the case?

The CJEU thus considers, on the one hand, that Article 12 of the GDPR provides that the request for access does not entail any costs for the applicant, unless there is an abuse of rights, as reasonable costs may be claimed for any additional copies (Article 15 GDPR).

Above all, however, the Court considers that the reason for the request does not need to be expressed, as it should be completely irrelevant to the communication of the data held.

So, whatever the reason for requesting data, the principle of free access remains the same.

 

2/ CAN THE REQUEST FOR REIMBURSEMENT OF COPYING COSTS BE ANALYZED AS A LIMITATION IMPOSED BY THE DATA CONTROLLER AS A NECESSARY AND PROPORTIONATE MEASURE THAT RESPECTS FUNDAMENTAL RIGHTS AND FREEDOMS?

This limitation would be “necessary and proportionate” with a view to protecting the legitimate interests of practitioners, which would make it possible, as a general rule, to prevent unjustified requests for copies from the patients concerned”?

*

First of all, the Court points out that national legislation predating the RGPD, must comply with it. But it also adds that protecting the economic interests of practitioners cannot justify a measure that calls into question a right of access, free of charge.

The Court therefore considers that a patient cannot be charged for the costs incurred by an initial request for a copy of medical data, in order to protect the economic interests of practitioners, at the risk of contravening the right of access to data under the conditions of the RGPD.

 

3/ THE THIRD QUESTION WAS AS FOLLOWS: IS THE REQUEST FOR ACCESS SATISFIED BY PROVIDING AN “EXTRACT OF THE DATA HELD” OR MUST “ALL MEDICAL DOCUMENTS CONCERNING THE PATIENT” BE PROVIDED?

The CJEU confirms the applicant’s right to obtain a faithful reproduction of the stored data. The copy must be complete, faithful and intelligible.

The Court points out that health data is so-called sensitive data under the RGPD, for which the provision of summaries, compilations or extracts would be likely to impair their understanding and accuracy.

In health matters, the right to obtain a copy of personal data should be understood as “the right to obtain a complete copy of the documents contained in one’s medical file”.

*

In its ruling, the CJEU confirms that any initial request for the communication of personal data, including health data, must be granted free of charge.

It recalls the obligation for all countries to comply with RGPD standards.

Finally, the Court confirms and affirms a right to communication of a medical file, in view of the sensitive nature of the data it contains, and its completeness, accuracy and intelligibility.

Thus, we can already consider that any request for payment of reprography fees, in France, to issue a copy of a medical file, would contravene CJEU case law.

It will necessarily be up to healthcare professionals and establishments to change their policy and billing methods for these copy requests.

Certain legislative provisions will certainly have to be modified, insofar as they authorize invoicing for the cost of reprography (with measurement and prior information).

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