In practice, it happens: a mentor requesting access to medical records on behalf of a client, while the client himself does not give his consent. This raises questions about the rights of representatives and the privacy of the client. What is allowed and what is not?
A client may have a legal representative, for example, because he or she has been declared legally incompetent. There are three forms of legal representation:
Trustee: for both financial and personal interests.
Administrator: for financial matters only.
Mentor: for decisions about care, nursing, treatment and supervision.
When a mentor is court-appointed, the mentor has a formal role as a representative in matters of care.
A mentor may have access to the client file, even if the client does not consent. This is possible because the mentor acts as a legal representative in care matters, provided the client is incapacitated in the relevant area.
But: this right of inspection is not unlimited.
According to the KNMG guideline "Dealing with Medical Data," a request for access should always be reviewed:
What is the authority of the mentor?
What is the purpose of the perusal?
Is the requested information necessary to fulfill the mentor's role?
The mentor may see only those data necessary to make decisions in the context of care. Thus, the request must be well justified.
The health care provider or attending physician has his or her own responsibility. It is customary, however, that when a request for access is made, the health care provider checks what the representative's authority is and for what purpose the information is being requested. Moreover, if providing information to the mentor would violate good care-giving, he or she may decide not to provide access.
In principle, a legal mentor may have access to the client file even without the client's consent, but only to the extent necessary to fulfill his or her legal duties. Caregivers are well advised to carefully review each request based on the directive and the client's specific situation.
