Rectification Of Inaccuracies Within Medical Records

Under Section 166 of the Data Protection Act (DPA 2018), a data subject can apply to the First Tier Tribunal requiring the Information Commissioner’s Office (ICO) to either take steps to respond to a complaint, or to inform the data subject of the progress of the complaint. This section does not give a data subject the right to challenge an ICO decision. There are specific avenues to do this, such as a judicial review or through the Courts. There are also very limited circumstances in the DPA 2018 under which a data subject can challenge a decision, such as in relation to a penalty notice.

Bellamy v Information Commissioner [2025] UKFTT 200 (GRC)

Background

The Appellant had noticed some inaccuracies within her medical records. The NHS Trust offered to meet with the Appellant to help identify the inaccuracies, but the Appellant refused. They also gave the Appellant an opportunity to add notes to her records.

The Appellant lodged a complaint with the ICO in relation to the inaccuracies. The ICO carried out an investigation and found that the inaccuracies identified by the Appellant were actually medical opinions and therefore, were outside of their powers.

The Appellant applied to the First-Tier Tribunal under Section 166 of the DPA 2018. As confirmed above, Section 166 of the DPA 2018 gives data subjects the power to apply to the First-Tier Tribunal to progress an ICO complaint. The Appellant had, however, accepted in this case that the ICO had already investigated her complaint and provided her with the outcome.

The ICO applied to strike out the Appellant’s application on the basis that the Tribunal lacked the jurisdiction to deal with the application and/or that there was no realistic prospect of the application succeeding.

Decision

The First-Tier Tribunal made it clear that the scope of a Section 166 application is to achieve progress in a complaint, and that once an outcome has been received, there is nothing to progress. The Judge confirmed that the tribunal has no power to demand that the ICO produce a particular outcome and that Section 166 does not provide a right of appeal against the substantive outcome of an investigation.

It was also made clear that whilst the ICO can require amendments to actual errors (such as an incorrect date of birth), the ICO cannot require a NHS Trust or medical practitioner to amend a medical opinion.

The Judge struck out the application on the basis of the above and strongly suggested to the Appellant that she should accept the invitation advanced by the trust to assist them in identifying the errors in the records.

Comment

This is a useful reminder of the scope of the ICO’s powers in relation to the rectification of medical records and the Tribunal’s powers in relation to the challenge of an ICO decision.