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BMA preparing legal challenge over imposed access to records programme

by Anna Colivicchi
2 June 2023

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The BMA’s GP Committee for England (GPCE) is considering a legal challenge over an imposed contractual requirement to offer patients access to prospective records.

NHS England has told practices that they will need to offer automatic access to prospective records via the NHS App by 31 October.

However, in new guidance published by the GPCE last week, it said it still has ‘reservations’ about the imposed rollout and is seeking legal advice.

‘Given our current and ongoing concerns we are taking further legal advice and challenging the way this project is being rolled out in the contract imposition we have faced’, GPCE has said. ‘We will provide more information on this challenge in the coming months.’

Despite its concerns, the BMA has prepared practical guidance on the issue to help GP surgeries ‘address common questions, key deadlines and practical considerations’ and prevent them falling ‘foul of their contractual requirements’.

The GPCE’s document stressed that, in principle, it continues to support the policy of extending access to patients’ online records but ‘that any risk to patient safety or practice stability is unacceptable and must be mitigated as far as is reasonably possible’.

It has advised practices they are not obliged to roll this programme out to all patients at present and that they should consider ‘a slower process in the coming months’ using the key steps below (see box).

The guidance warned that once the shift to prospective access goes live, all patients get instant access to all new information on their record, and that practices ‘should expect to field more queries related to what patients see on their records, either to rectify incorrect information or to better understand that information’.

As a result, practices should ‘ensure that they are recording information in a way that a patient can readily understand and which does not cause offence’.

The guidance also stressed that practices can redact entire consultations and documents, although GPCE said it believed redaction tools ‘are not fit for purpose’, which it is seeking to rectify.

‘This has been one of the significant aspects of concern we have and we are pushing back firmly on this, particularly in the current legal challenge to government,’ the committee explained.

‘We wish to seek solutions and make this project work and we hope government will meaningfully engage with us on this.’

The document also provides answers to common questions, including what action to take if a practice has batch coded its patient list to opt them out of receiving prospective access (using the SNOMED code ‘…104’, for example) and what to do if patients are requesting access to their records now.

Preparing for the 31 October 2023 deadline for automatic access to prospective records

The BMA says practices should consider the following: 

  • Make sure all practice staff are aware of the upcoming changes and have sufficient training to respond to any queries arising from patients. Extensive information is available in the RCGP Toolkit.
  • Promote the NHS app on your website – NHS Digital provides information you can use for patients.
  • Explain what online access to records means for your patients – NHS Digital provides resources to communicate with patients.
  • Determine if, as a practice, you wish to seek consent from each patient prior to granting access, and if so, determine a road map to ensure all patients who do not yet have access are consulted prior to the end of October. For anyone that had previously been given the ‘104’ SNOMED code and who is, therefore, thought to be at a higher risk of harm this step will be necessary. The only exception to not giving prospective access is if the patient asks not to have it. This will necessitate a conversation with the patient.
  • Practices that opted out of the November 2022 accelerated access programme functionality (which provided access at go live, when someone over 16 years old created an NHS login, or when a 15-year-old with an NHS login turned 16), by writing to system suppliers in 2022, will need to decide if they want to turn on this functionality, or grant access manually, to patients in the coming months. The new functionality does not deal with anyone with the ‘104’ code applied, and these will all need to be dealt with manually before the end of October and access given or dissent documented.

Source BMA guidance on accelerated access to GP-held records


Meanwhile, a London ICB has expressly advised GP practices not to switch on automatic patient access to prospective records ahead of the 31 October deadline.

Instead, practices should only switch it on for patients who specifically request access, North East London ICB told practices during a webinar this week.

Dr Osman Bhatti, a GP and chief clinical information officer at North East London ICB, told GPs: ‘One of the points I’m not advising at the moment is for practices to sign up for the automatic access to happen before 31 October.

‘I think things can change in the next five months and we should see what happens, and we should try and err on side of caution and have processes in place so that we can manage our patients, and then see if our unions and others can negotiate a more sensible thinking into NHS England.’

Echoing the BMA’s position, Dr Bhatti stressed that he thinks ‘all patients should have access to all their records’ but added that this ‘needs to be done in a controlled way’.

Dr Bhatti suggested practices should have ‘a clear pathway’ for patients to request their medical records via the NHS App that both patients and staff understand.

Versions of both these stories were first published on our sister title Pulse