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Medical Records

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John Birks
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This all falls under rule 2.

The tribunal is not responsible for obtaining the evidence.

Previously tribunals wrote for the evidence and paid the fee presumably on the basis that the appellant (and us as reps) did not have the funds to obtain the information.

As the law has changed and it is known that GP records are available without charge I’m not sure what the overall compelling argument is for using the tribunal clerks to routinely obtain evidence in place of yourself?

Each case would have to be considered on it’s merits but I would think you’d put yourself in for more than a little criticism if you didn’t advise on seeking and/or seek the evidence yourself prior to the hearing.

Of course this may change with the case management process - but I’d still expect that we as reps would be tasked with getting the evidence.

     
Mike Hughes
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John Birks - 04 April 2019 10:34 AM

This all falls under rule 2.

The tribunal is not responsible for obtaining the evidence.

...

Each case would have to be considered on it’s merits but I would think you’d put yourself in for more than a little criticism if you didn’t advise on seeking and/or seek the evidence yourself prior to the hearing.

Of course this may change with the case management process - but I’d still expect that we as reps would be tasked with getting the evidence.

Spot on John. When these adjournments first started I had to mentally adjust to asking myself what could be gained from medical records and if the answer was nothing (because we had all the evidence we needed) then I incorporated a statement to that effect (with a full explanation as to the logic) into my written subs and asked that any tribunal hearing the case and wanting to so adjourn be prepared to offer a full explanation to the appellant on the day as to the specifics of what they felt they were missing. Not been adjourned for GP records since.

     
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Mike - I’m not sure, or maybe it’s a regional thing, but in my experience it’s no more prevalent now than it was when I started in this game 20 years ago.

And whilst I agree that it is often unnecessary** my point was really about what should happen once a tribunal has made the decision to adjourn and direct the medical records are produced. The tribunal should not be placing an additional burden on appellants and their reps when it has already has a procedure which works well for obtaining the records. I am likely to challenge such directions if I get a case where they are given.

     
Mike Hughes
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past caring - 04 April 2019 10:45 AM

Mike - I’m not sure, or maybe it’s a regional thing, but in my experience it’s no more prevalent now than it was when I started in this game 20 years ago.

No idea if it’s regional but over 3 decades I’d say it’s only been prevalent and a “thing” in the North West since for about a decade.

     
John Birks
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Mike Hughes - 04 April 2019 10:40 AM
John Birks - 04 April 2019 10:34 AM

This all falls under rule 2.

The tribunal is not responsible for obtaining the evidence.

...

Each case would have to be considered on it’s merits but I would think you’d put yourself in for more than a little criticism if you didn’t advise on seeking and/or seek the evidence yourself prior to the hearing.

Of course this may change with the case management process - but I’d still expect that we as reps would be tasked with getting the evidence.

Spot on John. When these adjournments first started I had to mentally adjust to asking myself what could be gained from medical records and if the answer was nothing (because we had all the evidence we needed) then I incorporated a statement to that effect (with a full explanation as to the logic) into my written subs and asked that any tribunal hearing the case and wanting to so adjourn be prepared to offer a full explanation to the appellant on the day as to the specifics of what they felt they were missing. Not been adjourned for GP records since.

Thanks Mike.

 

     
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John Birks - 04 April 2019 10:34 AM

This all falls under rule 2.

The tribunal is not responsible for obtaining the evidence.

Previously tribunals wrote for the evidence and paid the fee presumably on the basis that the appellant (and us as reps) did not have the funds to obtain the information.

As the law has changed and it is known that GP records are available without charge I’m not sure what the overall compelling argument is for using the tribunal clerks to routinely obtain evidence in place of yourself?

Each case would have to be considered on it’s merits but I would think you’d put yourself in for more than a little criticism if you didn’t advise on seeking and/or seek the evidence yourself prior to the hearing.

Of course this may change with the case management process - but I’d still expect that we as reps would be tasked with getting the evidence.

I think this kind of blanket approach is wrong.

1. Rule 2 is about the overriding objective - dealing with cases fairly and justly. Which includes (but is not limited to) dealing with the case in ways which are proportionate to its importance, complexity, likely costs and resources of the parties, avoiding unnecessary formality and being flexible, ensuring so far as is practical the parties are able to participate fully in proceedings, using any expertise the tribunal has effectively and avoiding delay in as much as this is compatible with proper consideration of the issues.

2. It may be the case that tribunals’ past directions to HMCTS to obtain medical records was predicated on an assumption that the appellant would not have the financial resources to pay for this themselves. But I am not so sure. I was doing this job under a Legal Aid contract for the entire 12 years where welfare rights matters were in scope - which meant that disbursements of up to £250 were available to pay for an individual medical report (and you could obtain more than one report if need be). So where a medical professional refused to provide a report it was never once on the basis that we could not afford the fee. Consequently, hearings where I felt we did not have all the medical evidence we wanted were quite rare. It was, nevertheless, not uncommon for a tribunal to decide (entirely of its own volition and in the face of the quite detailed reports I had obtained) to adjourn to obtain full medical records.

3. In the twenty years I’ve been doing this job I’ve become pretty good at obtaining medical reports where I think they will be useful - even now, where Legal Aid has gone and the best the Law Centre can offer is £30. But from time to time, even where we have reports sufficient for the matter in hand, I still encounter the business of a tribunal deciding it wants full medical records.

4. My service only takes cases by referral and then only for more complex MRs and appeals. Referrals are often received only after the appeal has been lodged and quite often only after the DWP submission has been received by the client. This means not only that I don’t get the kind of lead-in time that would be available if I had been dealing with the case from the time the ESA50/UC50/DLA form/PIP2 was due for completion, but also that I often effectively have to start from scratch - the forms have been so poorly completed, even where a first-tier agency has been involved - that it’s impossible to determine whether there’s any merit in the appeal unless you start again from the beginning.

5. All of which means I do not have time to be assisting a client to use GDPR to obtain medical records because a tribunal has decided, on a whim, that these are needed - or, just as likely, because its earlier cases have overrun and it’s looking for a reason to adjourn. Much less do I have time to be arguing the toss with a surgery about its obligations under GDPR and to sit down with a client and go through 3-4 years’ worth of superfluous records, which I haven’t asked for, just to be sure there isn’t something in there that might harm their case or which they might wish to redact.

6. Coming back then to rule 2, I would say that it will often not be fair and just for a tribunal to direct that medical records are produced because these are simply not needed. But where a tribunal nevertheless insists on this, it should make the necessary arrangements itself. The ‘resources of the parties’ involves more than their financial resources - for represented appellants, the amount of time that the representative is able to devote to any one case/client is often the most telling factor.

If I start getting these kind of directions, I’ll be challenging them.

     
Mike Hughes
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As regards 6, my understanding is that the focus is partly on the cost to HMCTS but mostly on unnecessary adjournments (as you observe under 5). I honestly don’t think the adjournment angle is 50/50. I have thought for some time it’s the main thing. In a few cases I have advised my client to not consent and on relisting the case was won straightforwardly minus this supposedly essential medical evidence.

However, I also understood that tribunals have been pulled up on the “all GP records” approach and are largely confining themselves to the past 2 or 3 years or a period relevant for some specific reason.

I have to agree that a blanket approach is wrong BUT in reality I can’t get that worked up about it as I simply don’t accept that GP records are pivotal in that many cases.

     
Dan Manville
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This isn’t regional. We’ve had sight of a letter from the chamber president to all Judicial Office holders advising them that this is now the course of action to take.

     
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Mike Hughes - 05 April 2019 11:31 AM

I have to agree that a blanket approach is wrong BUT in reality I can’t get that worked up about it as I simply don’t accept that GP records are pivotal in that many cases.

Which is exactly my position - and what I’ve said (in a long winded way) follows from that. I will almost always have any medical evidence I want. On the rare occasions I will ask for an adjournment in order to obtain medical evidence, it will be because a) I think a report (not medical records) dealing with one or more specific points will be useful and b) I’ve been instructed late in the day, have requested and been promised that report but the GP/counsellor/physio/psych/social worker/specialist has not yet had chance to complete it.

I’ve never asked for an adjournment to obtain medical records. If the tribunal insists on doing that, my view is that fairness and justice requires that it uses its resources to do so, not mine.

     
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Dan Manville - 05 April 2019 11:42 AM

This isn’t regional. We’ve had sight of a letter from the chamber president to all Judicial Office holders advising them that this is now the course of action to take.

Don’t suppose there’s a copy you can upload?

     
John Birks
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I don’t think there’s enough evidence of a blanket policy either way but I think the directions as issued would be hard to resist.

I think if I turned up at a hearing without good evidence and resisted the directions at #1 I wouldn’t get very far by requesting a modification for the clerk to get them.

I realise there’s some drifting from the original point but…

1.  2 (4) (a) & (b) are your friends here. - Why would you not get the med records without explanation? They’re freely available?

2. We used to have an LSC contract and could pay fees for the med records/reports - we don’t now but that’s another story. Med records often are unhelpful - trip to the states - vaccines for travel to the far east etc.

3. I’ve been doing this a long time too, I concede I’m not a solicitor or anything but I can read a case for evidence. Sometimes med records are wanted for the ‘whole picture’ rather than an individual descriptor or two, see above for instance.

4. We only get involved at a later stage too. I prefer that tbf all round.

5. I ask the client to obtain their own records in the first instance - see #3 & #8

6. The Tribunal may regulate its own procedure - You can challenge a direction but that may bring you into conflict with 2 again, it depends on the case (as ever.)

     
Dan Manville
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past caring - 05 April 2019 11:47 AM

Don’t suppose there’s a copy you can upload?

I have made enquiries

     
Dan Manville
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There we go

While I’m on hold I’ll add my twopennerth. This is largely academic for me as I have access to some NHS systems so usually have enough evidence without needing to instruct anyone, but regarding the additional work for reps, surely the additional work is simply the request and chase?

If a Tribunal directs records are obtained by the clerk,- whether they see a hole in the evidence or are late for their table booked at the only Michelin starred restaurant in town-  surely we still have to read them and seek instructions from our client?

HMCTS are losing the costs and shifting the workload onto us; considering the shrinking budgets in MoJ surely we can’t be too surprised this has happened. I’m surprised it hasn’t happened sooner. I’ve been advising people with physical problems to provide me their records since last May where I think they’ll be useful.

It’s not made much difference to my adjournment rate but I, too, frequent the only Michelin starred restaurant in town and I can’t blame them for wanting plenty of time for lunch.

      [ Edited: 5 Apr 2019 at 12:36 pm by Dan Manville ]

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Elliot Kent
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“Following the advent of General Data Protection Regulations (GDPR), HMCTS can no longer pay for medical notes”

Well plainly it has come from the President and ought to be followed, but I am afraid I do not understand that proposition.

 

     
Paul_Treloar_AgeUK
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Elliot Kent - 05 April 2019 12:29 PM

“Following the advent of General Data Protection Regulations (GDPR), HMCTS can no longer pay for medical notes”

Well plainly it has come from the President and ought to be followed, but I am afraid I do not understand that proposition.

 

Seconded, that’s an absurd statement to make.