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new regulations

Mother & Baby Homes: GPs no longer have to sign off on requests by survivors to get health records

New regulations have come into force after months of uncertainty and threats of legal action.

GENERAL PRACTITIONERS WILL no longer be asked to sign off on requests by survivors of mother and baby homes seeking access to their own health records.

New regulations have come into force after months of uncertainty and threats of legal action, The Journal has learned.

Cases where people were previously denied access to their records unless a GP was consulted will now be reexamined by the Department of Children, Equality, Disability, Integration and Youth (DCEDIY).

When the Commission of Investigation into Mother and Baby Homes wound down in February 2021, the DCEDIY became the data controller for its records.

Many survivors have since requested access to their medical files and other records. However, there was disagreement over whether or not a GP needed to sign off on the request before files were given to survivors.

Under Article 15 of General Data Protection Regulation (GDPR), people have a right to submit Subject Access Requests (SARs) if they wish to be given a copy of any of their personal information which is being processed by those in control of it – in this case, the Department of Children.

Despite this, the DCEDIY had urged survivors to apply for their records via Freedom of Information (FOI) request, rather than under GDPR – something data experts argued made little sense.

Solicitor Simon McGarr previously told The Journal that introducing new regulations was not necessary because GDPR, an EU regulation in place in Ireland since 2018, supersedes domestic legislation.

McGarr said the Department would be in breach of EU regulations if it did not directly give survivors copies of their medical records without the involvement of a GP.

However, new regulations have now come into force and the DCEDIY believes the issue has been resolved.

Reviewing previous cases 

In a statement, a spokesperson told The Journal: “Over the last number of months, the DCEDIY and Department of Health worked closely together to progress new regulations and the Data Protection Act 2018 (Access Modification) (Health) Regulations 2022 have now come into force.

“These new regulations will replace the existing Data Protection (Access Modification) (Health) Regulations 1989 that required a data controller who is not a health professional to engage in a consultation process in all cases with an appropriate health practitioner before supplying any health data to the data subject concerned.

“The new regulations will remove the mandatory requirement to consult in every case and permit a data controller to exercise his/her discretion to consult in appropriate situations.”

The spokesperson said the new regulations “will have a particularly positive impact for individuals seeking to access their health data in the Mother and Baby Homes archive as it will no longer be mandatory in all cases to consult the individual’s health practitioner before releasing their health data to them”.

“The new regulations will facilitate access to an individual’s health data in a more timely manner,” the spokesperson added. 

The DCEDIY will now review all SAR responses where health data was previously withheld and “will be working to provide health data to individuals as quickly as possible”.

Individuals who are awaiting the release of their health records do not need to take any action at this time and the Department will be in contact with them “at an early date”.

The DCEDIY will also be “working to provide health data under GDPR to those individuals who previously opted to receive their health data under FOI as an interim measure” pending the regulations, the spokesperson added.

A number of survivors of mother and baby homes were considering legal action in a bid to gain access to their medical records.

The Journal confirmed in January that just 40 survivors had received their health records to date, mainly through FOI requests.

‘Contrary to EU law’

Responding to the latest development, McGarr said the 1989 regulation was “contrary to EU law”.

He said the new regulations continue to allow for documents to be withheld, and continue “to assert that people would have to pay their own doctors to accept and assess them”.

“It remains, therefore, to be seen whether this will be the end of the matter in practice,” he added.

The new Statutory Instrument (SI) notes that the Minister can refuse access to medical records if he “has reasonable grounds for believing that granting access to the health data concerned would be likely to cause serious harm to the physical or mental health of the data subject”.

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