"I am a private consultant psychiatrist and have been contacted by the police who have requested a copy of a patient's medical records, to help them in investigating a crime. They are hoping there will be information in the record that will help the Crown Prosecution Service make a charging decision.
"Although the police say the patient may have committed a serious crime, he is not currently a risk to the public and he has capacity. I understand that the patient, on the advice of his solicitor, has refused to provide his consent to allow the disclosure of his medical records.
"The police officer has presented me with a production order, signed by a judge, which orders the disclosure. I assume that I have to comply with this order?"
It's not unusual for the police to request the medical records of patients to assist with a criminal investigation. Generally speaking, if the patient is not an immediate threat to the public and they have capacity, their consent should be sought by the police before information is disclosed.
Where consent is refused, or where the patient lacks capacity but you can't justify disclosure in the patient's or the public interest, the police may, under certain circumstances, obtain a court order. However appropriate they seem, court orders need to be viewed with caution.
A production order is a specific type of order which can be produced under Schedule 1 paragraph 4 of the Police and Criminal Evidence Act 1984 ('PACE'). They are used by the police in order to gain access to documents they need as part of a criminal investigation. However, medical records fall within the definition of 'excluded material' under the Police and Criminal Evidence Act. This means that before a person is charged, the police have no right of access to the records and cannot obtain a lawful court order for their disclosure. After a person has been charged, then the police can apply to the court for disclosure of the medical records via a witness summons.
It's important to understand when the police can lawfully obtain a production order, as we have come across cases where these have been issued under PACE in error. It's also important to seek advice early from your medical defence organisation.
In this case, it's vital to establish whether or not the patient has been charged - if not, the production order will not have been legally granted, but this does not mean it can be ignored. While bringing this to the attention of the police will hopefully dissuade them from using the order to secure the medical records, it does still need to be discharged (formally ended). This can be done by the police or, if appropriate, by your medical defence organisation.
It's always a good idea to contact your medical defence organisation before relying on a court order when you receive one, even if it does seem to be lawful and valid.