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Medical Records

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DWRS
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Please see attached directions which were handed down at Tribunal yesterday.

The judge who handed them down stated that these are based on draft directions handed down by the Tribunal Service (although I suspect the dead hand of Nick Moss may have something to do with them) .  He stated that, due to GDPR, the Tribunal Service is no longer able to obtain GP records, and it will now be solely the appellant’s responsibility to obtain them.

He further stated that where directions to the Appellant advised them to obtain there GP records, an inference may be drawn where the appellant failed to do so.

I feel there are obvious practical issues with this, not the least of which is that it is clearly not in the interests of justice for one side to be almost solely responsible for obtaining evidence which the Tribunal requires to make a fair decision.

     

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ClairemHodgson
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but also consider

1. your client can now, post GDPR, get his/her gp notes/records and hospital records for free, neither GP nor hospital can charge
2.  it is ALWAYS better for the client/rep to be in charge of disclosure and to have read the relevant records first (true, that’s from a claimant solicitor perspective, but the point holds true for benefits also).
3. whilst the DWP could get them, we are all aware that the DWP’s attitude to claimant’s access to their own data leaves a lot to be desired and puts blocks in at every turn

Your only real issue is likely to be that some GP practices haven’t yet worked out that they can’t charge, and try and make a song and dance about it.

but the records are required for legal proceedings (which is what tribunal proceedings are) so the ICO would be unimpressed if the GP started mucking about.

There’s a form agreed between the BMA and the Law Society for the purpose, which i will hopefully have succeeded in attaching to this

     

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ClairemHodgson
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oh, and i’m at a loss to understand why he thinks the tribunal can’t do it; unless it’s about the required form, which is silly as all he’d need to do is make an order addressed to the GP.

but frankly, far better that you are in control

     
John Birks
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I don’t see any issues with this.

I ask clients to obtain their own as a default. If there’s any issues (forseen or unforseen) then I’ll write also.

I haven’t run any stats but the majority are able to do this themselves.

Clients can then redact or remove irrelevant personal information as Claire has said.

     
Elliot Kent
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It isn’t the case that GDPR would in any way preclude a Tribunal from seeking medical records. There remains a relatively pain free process which the Tribunal can (and often does) use to get the medical records. I understand that a fairly small fee is then payable by HMCTS to the GP practice but that is not something which ought to concern the judiciary.

The difference with GDPR is that its now open to a claimant to get the records for free whereas previously it would generally have cost £50.

I have had directions like these in a couple of cases and honestly it has just made everything significantly more difficult for everybody. You need to get your client to go to the GP surgery, explain what GDPR is and why they are allowed a free copy of their medical records (which is not always understood). The surgery then needs to send those out to the client. The client then needs to bring them to you. You then need to manually read through every page of the records (because you are then personally responsible for the contents of what you are sending in as evidence - see JC v SSWP (PIP) [2016] UKUT 533 (AAC) - whereas you would not be if they were provided by the surgery directly). You may well then need to take instructions on what ought to be disclosed. And then you need to photocopy them and send them to HMCTS. Who then needs to circulate them amongst the parties anyway.

It isn’t the worst thing in the world, but it adds a few layers to the process for little obvious benefit.

If there are delays by the surgery in providing the records, then it becomes a matter which places your client in breach of directions, and potentially at risk of a strike out (although I would have thought that unlikely) - rather than it simply being a matter of the clerk chasing up with the GP.

I do not see that it is objectionable in principle for the Tribunal to ask an appellant to do something which is both free and within their power. There are cases where the UT has reminded appellants and reps that they are also responsible for producing relevant information and that it is not something which we can always just place on the Tribunal. If the Tribunal decides that it is appropriate for a party to be directed to do something rather than to leave it to the clerk, then I think that is well within its rights. But it is difficult to see what purpose is served by re-framing the usual directions in this way.

I think that Claire makes an interesting point about being in control of the information. Honestly, its not something I had really given much thought before. But, I do wonder what the Tribunal’s reactions would be if chunks of the records were missing because the client did not want to disclose them.

     
John Birks
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“You then need to manually read through every page of the records…”

I find it’s normally good practice to read through the evidence wherever it comes from.

Remembering the contents however, gets more difficult year on year….

     
ClairemHodgson
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Elliot Kent - 03 April 2019 07:11 PM

You need to get your client to go to the GP surgery, explain what GDPR is and why they are allowed a free copy of their medical records (which is not always understood). The surgery then needs to send those out to the client. The client then needs to bring them to you.

no. you can write to them yourself, having had client sign, and you sign, the form i uploaded to my last.  and teh GP HAS to send them to you, it cannot insist on client collecting.  and if the GP doesn’t like it, the GP can be referred to the ICO (AND to the tribunal itself).  the Tribunal IS a court and does have powers!  And, you can restrict the request to that which is relevant (e.g., after a particular date, or whatever)

You then need to manually read through every page of the records (because you are then personally responsible for the contents of what you are sending in as evidence - see JC v SSWP (PIP) [2016] UKUT 533 (AAC) - whereas you would not be if they were provided by the surgery directly). You may well then need to take instructions on what ought to be disclosed. And then you need to photocopy them and send them to HMCTS. Who then needs to circulate them amongst the parties anyway.

well, frankly, you would need to read them anyway - you may after all find your client has been economical wtih the truth, or understated the position - you would want to have read them if you are repping at the tribunal.  how can you not?

If there are delays by the surgery in providing the records, then it becomes a matter which places your client in breach of directions, and potentially at risk of a strike out (although I would have thought that unlikely) - rather than it simply being a matter of the clerk chasing up with the GP.

 

Actually, it places the GP PRACTICE in breach of its obligations under the DPA, reportable to the ICO (which will not be pleased with teh GP) and easily explained to tribunal WHICH HAS POWER TO MAKE AN ORDER.

I think that Claire makes an interesting point about being in control of the information. Honestly, its not something I had really given much thought before.

Thank you.  It is quite important.  particularly in a contentious case.

But, I do wonder what the Tribunal’s reactions would be if chunks of the records were missing because the client did not want to disclose them.

  as for chunks being missing - if there are reasons for that (for instance, things irrelevant such as historic abortions or whatever) easily explained by a statement saying why redacted.  Otherwise, its for the rep to advise the client as to what has to be disclosed and what not, in the context of the individual case.  Frankly, if a client of mine wanted to be economical with the records that are relevant to his/her case, s/he wouldn’t remain my client for much longer (as a solicitor, i of course have a duty to the court which in that sort of circumstance overrides my duty to the client and I can, have, would, sack the client).  For these purposes, the tribunal is a court.

I frankly wouldn’t be happy to have not seen/read someone’s records where they had been called for, when the points in issue are what is evidenced (or not) by those records

how could one do ones job?

 

     
Benny Fitzpatrick
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Is it not the case that GP practices can charge an “admin fee” for printing the records? We have had cases where clients have been told they can attend the surgery to view records (and make notes) but are charged for any printed copies.

     
John Birks
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Benny Fitzpatrick - 04 April 2019 09:26 AM

Is it not the case that GP practices can charge an “admin fee” for printing the records? We have had cases where clients have been told they can attend the surgery to view records (and make notes) but are charged for any printed copies.

Not since the GDPR came in.

Part of the reason I ask the clients to get them themselves is to avoid any potential issues over our organisation coming into conflict with the GP surgeries over costs ‘The nail that sticks out shall be hammered down’?  and to involve the client with their claim.

Obvs in circs where clts are unable to do this I would make the request on their behalf.

     
Elliot Kent
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Benny Fitzpatrick - 04 April 2019 09:26 AM

Is it not the case that GP practices can charge an “admin fee” for printing the records? We have had cases where clients have been told they can attend the surgery to view records (and make notes) but are charged for any printed copies.

Not after GDPR.

Re Claire and John,

I think I have been misunderstood as in some way saying that I don’t think it is necessary to read medical records when representing. To be clear, that is not remotely what I’m saying - it would be positively negligent not to do so.

I would have thought that I could be credited with at least a degree of professionalism.

What I am saying is that it goes from being part of the general prep for the hearing or in drafting your submissions to being an additional task which you either need to complete within the 28 days set or risk placing your client in breach of the directions.

All this stuff about ICO and tribunals making orders - this all goes to the only real point I am making. The Tribunal already has in place a largely painless process to get the records. If a Tribunal directs the clerk to get the records, it will have them relatively quickly without it needing to go back for further directions and without any notion of the ICO needing to get involved. Getting the appellant to do it is a fussier process in which more can go wrong. What is the added value which justifies the extra fuss?

     
John Birks
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Elliot Kent - 04 April 2019 09:56 AM
Benny Fitzpatrick - 04 April 2019 09:26 AM

Is it not the case that GP practices can charge an “admin fee” for printing the records? We have had cases where clients have been told they can attend the surgery to view records (and make notes) but are charged for any printed copies.

Not after GDPR.

Re Claire and John,

I think I have been misunderstood as in some way saying that I don’t think it is necessary to read medical records when representing. To be clear, that is not remotely what I’m saying - it would be positively negligent not to do so.

I would have thought that I could be credited with at least a degree of professionalism.

What I am saying is that it goes from being part of the general prep for the hearing or in drafting your submissions to being an additional task which you either need to complete within the 28 days set or risk placing your client in breach of the directions.

All this stuff about ICO and tribunals making orders - this all goes to the only real point I am making. The Tribunal already has in place a largely painless process to get the records. If a Tribunal directs the clerk to get the records, it will have them relatively quickly without it needing to go back for further directions and without any notion of the ICO needing to get involved. Getting the appellant to do it is a fussier process in which more can go wrong. What is the added value which justifies the extra fuss?

Waiting to get to a tribunal hearing and asking them to get the records is not likely the best use of tribunal time.

Please do not take the previous post about reading the records as a slight against your work but as a take of the post as it was written.

 

 

     
Mike Hughes
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All of which needs to be placed in the context that

a) tribunals largely use a request for GP records as a stalling device i.e. they don’t want to make a decision.
b) the number of cases in which GP records for any period are pivotal are relatively small in the scheme of things.

     
past caring
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I am with Elliot on this.

That this new policy has come into being in HMCTS** in order to, supposedly, comply with GDPR only goes to show how misunderstood GDPR is - and illustrates the potential for things to go wrong. More importantly, in many cases it will add extra work for us as reps and that’s even with things running smoothly - if things go wrong or there’s resistance from the surgery, the additional work has the potential for being a real burden.

And as Elliot said, the existing HMCTS procedure worked extremely well - has anyone ever encountered a case where the surgery refused to provide the evidence when requested by the tribunal?

Also, given the facts that the records are required in court proceedings and the appellant always had to sign the form and give permission for the records to be disclosed, I am really struggling to see the potential GDPR breach here?

(** Assuming there is a such a policy and this is not an individual judge acting the arse.)

     
Elliot Kent
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John Birks - 04 April 2019 10:04 AM

Waiting to get to a tribunal hearing and asking them to get the records is not likely the best use of tribunal time.

Not saying that - I’m saying that if the Tribunal gets them itself and puts them on the bundle, its entirely reasonable for you to read them along with the rest of the bundle in line with your overall preparation of the case.

     
Mike Hughes
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past caring - 04 April 2019 10:16 AM

I am with Elliot on this.

That this new policy has come into being in HMCTS** in order to, supposedly, comply with GDPR only goes to show how misunderstood GDPR is - and illustrates the potential for things to go wrong. More importantly, in many cases it will add extra work for us as reps and that’s even with things running smoothly - if things go wrong or there’s resistance from the surgery, the additional work has the potential for being a real burden.

And as Elliot said, the existing HMCTS procedure worked extremely well - has anyone ever encountered a case where the surgery refused to provide the evidence when requested by the tribunal?

Also, given the facts that the records are required in court proceedings and the appellant always had to sign the form and give permission for the records to be disclosed, I am really struggling to see the potential GDPR breach here?

(** Assuming there is a such a policy and this is not an individual judge acting the arse.)

I think there is some misunderstanding on the policy side of this. HMCTS has a clear and understandable agenda to reduce adjournments and whilst £50 isn’t much that mounts up to a considerable amount of money across the UK. I am very clear that whilst this is driven by GDPR to some extent it is also a money saving exercise and about getting things dealt with in a timely manner. It’s easy to forget that “Adjournment for GP records” is a fairly recent phenomenon and has little to do with timely justice or gaps in evidence.

     
ClairemHodgson
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Benny Fitzpatrick - 04 April 2019 09:26 AM

Is it not the case that GP practices can charge an “admin fee” for printing the records? We have had cases where clients have been told they can attend the surgery to view records (and make notes) but are charged for any printed copies.

absolutely not.

should, in the future, anyone have a GP try that one, report them to the ICO and point them at the BMA guidance, ICO guidance, etc

i can entirely understand that they all find it bizarre, cos it’s frankly a huge amount of work for them - especially for those who haven’t got their IT up to speed so as to be able to put it on a disc and send that out, which would be hugely cheaper/easier.

but they are where they are….they HAVE to provide them, free, to the client, and/or client’s authorised rep.  If the rep, they CANNOT insist on client collecting, but have to send to the rep.