THE RIGHT TO A FREE COPY OF YOUR MEDICAL RECORDS

4.12.2023

Does a patient have the right to receive a free copy of his/her medical records? Does he/she have to pay for the costs involved whenever he/she requests it? Let's take a look at a recent judgment of the Court of Justice of the European Union which addresses these very questions.

Who can consult and make copies of medical records?

Section 65(1) of Act No. 372/2011 Coll., on Health Services and Conditions of their Provision (hereinafter referred to as the "Health Care Act"), provides that the patient, the patient's legal representative or guardian, persons designated by the patient, or persons close to the deceased patient may inspect and make extracts or copies of the medical records in the presence of an employee authorised by the provider.

However, these are not the only persons who may have access to medical records. Section 65(2) of the Health Care Act further defines the persons who may consult the patient's medical records without the patient's consent if it is in the patient's interest or if it is necessary. Specifically, this includes, for example, doctors or other professionals in direct connection with the patient's care, the ombudsman or, for example, a court expert who has been commissioned to prepare an expert report.

At the same time, according to Section 66(1) of the Health Care Act, these persons may make extracts and copies of the patient's medical records, either by making them themselves on the spot or by the provider himself making a copy of the medical records. In the case of a patient and other persons referred to in Section 65(1) of the Health Care Act, the provider shall be obliged to make an extract or copy of the medical records within 30 days of receipt of a written request; in the case of persons referred to in Section 65(2)(b) to (k), this time limit is reduced to 15 days. If the copy is made by own means, there is no charge and both the consultation and the copy are free of charge.

If the provider makes the extract or copy of the medical records himself, he may claim reimbursement in accordance with Section 66(3) of the Health Care Act, i.e. reimbursement in an amount which must not exceed the actual costs incurred (paper, printer ink or dispatch). However, the price list for the acquisition of an extract or copy of the medical records must be posted in a place publicly accessible to patients so that they can familiarise themselves with it.

In the event that the provider is unable to provide access to the medical records to persons referred to in section 65(1) of the Health Care Act, he shall make a copy of the medical records for them within 5 days of being informed that access to the medical records cannot be provided, unless a different time limit has been agreed. In this case, no payment may be claimed for the copy.

Does the patient have to pay for a copy of their medical records?

Let us first look at the facts of the judgment of the Court of Justice of the European Union ("CJEU"). This case involved a patient who asked his dentist for a copy of his medical records in order to pursue legal liability claims against her in relation to errors she was alleged to have committed. However, that dentist required him to pay the costs of providing a copy of the medical records, as provided for under German law.

Here, since the health care provider is the data controller, the CJEU interpreted that Articles 12(5) and 15(1) and (3) of the General Data Protection Regulation ("GDPR") must be interpreted as meaning that there is an obligation on the provider to provide the first copy of the medical records free of charge.

In this case, the CJEU points out that the GDPR allows patients to obtain the first copy of their medical records without incurring any costs. The provider can only charge a fee if the patient has already received the first copy of his data free of charge and has requested it again.

Therefore, if a patient requests a copy of his/her medical records and it is his/her first request, the provider is not entitled to charge the patient. Neither can national legislation impose an obligation on the patient to pay a fee for the first copy of his medical records, even in order to protect the economic interests of the persons treating him.