The major innovation introduced by the Kouchner law of 2002 on patients' rights (with the right to information, etc.) was to allow anyone direct access to all the information concerning their health held by health professionals. .
Article 1111-7 of the Public Health Code provides that all information "which is formalized or has been the subject of written exchanges between health professionals, in particular examination results, consultation reports, intervention reports , exploration or hospitalization, the protocols and therapeutic prescriptions implemented, monitoring sheets, correspondence between health professionals, with the exception of information indicating that they were collected from third parties not involved in the therapeutic care or concerning such a third party ”.
The principle is that each healthcare professional must establish a medical file containing all the information concerning the medical follow-up of his patients. These files include consultation reports, the results of examinations, exploration, hospitalization or intervention, as well as prescriptions, treatments followed, correspondence with other health professionals involved in the treatment. therapeutic burden of the patient ...
Not all documents kept by the doctor are part of the medical file. Simple notes will be considered personal if they are not related to the patient's diagnosis, treatment, etc. As well as all information collected from third parties who are not involved in the therapeutic monitoring of the patient.
Thus, each patient actually has several medical files concerning him which are held by all the practitioners (attending physician, dentist, gynecologist, etc.) or health establishments that he has consulted.
To know :
The health insurance holds for each insured a Shared Medical File (DMP) which groups together all the medical acts carried out via the vital card. It should not be confused with the medical file as understood by the law, but rather with a computerized health record accessible to the doctors who follow the insured concerned. Currently, it can only be opened and closed at the request of the insured and accessible only to health professionals of their choice. The DMP is still under development and is not yet accessible throughout the country.
Persons authorized to access the medical file
The following are authorized to consult the medical file:
The patient himself.
If it is an adult benefiting from a protective regime:
- Under supervision, the tutor may consult him or the attending physician if the patient has appointed him as his representative.
- Under curatorship, adults can perform all the acts of everyday life on their own, including consultation of their medical file.
If it is a minor:
A minor can always consult his file alone, as well as his legal representative or the representative appointed by the minor (the attending physician, etc.).
The minor may object to his parents consulting all or part of his medical file. The nursing staff can dissuade him from doing so, but if he does not succeed, the minor's wishes must be respected and noted on the file.
The Council of State has ruled on the right of a mother to access her daughter's file on the basis of article 1111-7 of the public health code. The young girl, a minor who was being treated against the advice of her mother (her legal representative), had opposed the complete transmission of her medical file. The mother was only able to access information for which her daughter had given her consent.
The terms of the consultation
To consult a medical file, the request must be sent by mail directly to the health professional (the doctor) or to the manager of the establishment where the care was provided. The patient must attach proof of their identity to the request.
The patient may be assisted by another doctor of his choice during the consultation in order to be informed about all the information contained in the file. The file may be consulted on site and will be free of charge unless the patient requests copies which will be chargeable.
To note :
Very often, medical data will be stored with a provider completely outside the service or the doctor. The request must be sent to him, specifying the quality of the requester, proof of his identity. The response must be sent within 8 days for a recent file (less than 5 years old) and within 2 months if it is more than five years old.
Regarding personal data (kept on paper or dematerialized) the host must be approved. However, you should know that since January 28, 2016, there is no longer any need to obtain the consent of patients to store their files with external providers, because their consent is now presumed. As this is information covered by medical secrecy, these hosts cannot sell or transfer this personal data under penalty of criminal penalties.
In the event of sending by post, or on CD Rom, the patient will be asked for the cost of reproduction and sending.
Consulting the medical file of a deceased patient
The file of a deceased adult can be consulted by his beneficiaries, his spouse or his PACS partner.
That of a deceased minor patient may be consulted by their legal representatives.
But, whether minor or major, the will of the deceased will be taken into account. If the latter intended to limit access, his beneficiaries will only be able to access authorized information.
Regarding the intervention of beneficiaries (all legal successors of the deceased), the law only allows them access to the medical file in three specific cases:
- Know the causes of death
- Assert their rights (justice, insurance, etc.)
- Restoring the memory of the deceased
However, they will only be entitled to restricted access to the medical file. Only parts that meet one of the 3 goals pursued will be accessible to them.
To note :
This right of access to the medical file granted to the patient as well as to his legal representative or his beneficiaries can also be exercised through a representative (generally another doctor) if he can prove his identity and that he has an express mandate (CE 26 December 2005 n ° 270234)
Legal limits of access to the medical file
The principle laid down by the Kouchner law of 2002 is that the patient must have access to all of his medical file.
However, any holder of the file may oppose, for justifiable reasons, its consultation or limit access to it.
A care establishment can refuse access. But this refusal must be justified, and a medical certificate must be issued. However, its content will be very limited given the medical confidentiality to which healthcare professionals are subject.
For legitimate reasons assessed in conscience, the code of ethics allows physicians to withhold any harmful information in the event of a diagnosis or serious prognosis for the patient.
This means that the doctor will be able to object to the patient having direct access to his file if he considers that the disclosure of the information could prove to be dangerous for him.
This only concerns the patient. The doctor arguing a case of conscience can either inform third parties directly (attending physician, family, etc.), or recommend that the consultation be made in the presence or through a third person (attending physician, etc.).
In any event and for whatever reason, any refusal may be contested.
Recourse in the event of refusal or delay in the communication of the file
If you are refused access to the medical file, you benefit from two distinct procedures depending on whether the file holder is a public or private establishment, or by a private doctor practicing in an office.
If the medical file is held by a hospital, a clinic (under the public hospital service), or even a retirement home (many of which are medicalized), it will be necessary to refer to the Commission d'Accès aux Documents Administratifs (CADA).
The request must be accompanied by all the supporting documents (identity of the patient, date of hospitalization, letter of request, letter of refusal, etc.).
The private establishment
All private establishments (clinics, etc.) have an internal committee that can rule on these appeals. In the absence of a response or in the event of the commission's refusal, it will be necessary to contact the Ministry of Health, which is the supervisory authority for health establishments under private law.
The request must be sent to the hospitalization and care organization department, attaching all the relevant documents (patient identity, information on the establishment, date of treatment, refusal letter, etc.).
The liberal doctor
In the event of refusal by the doctor practicing in an office or the dentist, you can enter either or cumulatively:
- The council of the departmental order of doctors or dentists.
- The Tribunal de Grande Instance of the place of establishment of the doctor or dentist in summary proceedings
- The National Commission for Informatics and Freedoms (CNIL)
- Psychiatric establishments
The procedure for accessing the medical file of a patient suffering from mental disorders and hospitalized without his consent is governed by the circular of February 14, 2005.
In the event of care provided due to mental disorders in a psychiatric establishment (whether it is hospitalization at the request of a third party (HDT), ex officio (HO), etc.), the presence of a third person (a doctor) will be imposed on the patient whenever there are "particularly serious risks" in letting the patient consult his file alone.
The presence of the doctor will help him understand the information contained in the file (prescriptions, pathologies, etc.).
If the patient refuses the presence of the doctor to accompany him in the consultation of the file, it is up to the hospital establishment to seize the Departmental Commission of Psychiatric Hospitalizations (CDHP) whose competence is to ensure respect for dignity and freedoms. individual of people hospitalized in psychiatry.
Once rendered, the opinion of the CDHP is final and not subject to appeal, it will be binding on both the establishment and the patient.
The retention period for the medical file
To note :
No legal provision obliges physicians practicing in private practice for a period of time during which they are required to keep their patients' files. This obligation has only been foreseen for health care establishments, public or private.
In principle, public and private establishments are required to keep medical records for a period of 20 years from the last act performed or the patient's last consultation. But other deadlines apply:
- For a minor under the age of 8, the file is kept until he has reached his 28th year.
- In the event of death occurring less than ten years after the medical act performed, the healthcare establishment must keep the file for 10 years from the date of death.
- If a transfusion took place during hospitalization, the medical file must be kept for 30 years
- Once these deadlines have been passed, it is up to the director of the establishment, after consulting the doctor responsible for medical information, to destroy the medical files.
To note :
In the event of legal action against the healthcare establishment or healthcare professionals (medical fault, etc.), all deadlines are suspended.
The medical file which can be seized by justice can no longer be destroyed until a final judgment is obtained.