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Medical Records

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John Birks
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ClairemHodgson - 11 April 2019 10:32 AM
Mr Finch - 11 April 2019 10:21 AM

This presumes that the full medical notes support the appellant’s case - which surely in itself raises other questions about the SSWP’s position?

dunno about the SSWP, but certainly from my perspective ii would want to know whether the client’s records support, or not support, their case before anyone else does!

I’m not a lawyer but IMO it really doesn’t matter - I always explain the medical evidence shouldn’t be adjusted to support a preferred outcome but the explanations should be ready.

     
Daphne
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Buckinghamshire Disability Service (BuDS) have posted this on facebook which gives more information…

     
Mike Hughes
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Any chance of copying/pasting the text into here please? I’m very proud of my total refusal to engage with Facepalm but that link seems to time out and cover the legal text element.

     
John Birks
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It looks like there has been a huge change to the way medical records will be used in social security benefit appeals. This applies to all benefits including DLA, PIP, ESA, Universal Credit, etc. BuDS thinks this change is a big backward step for Tribunals. Read on to learn more…

WHAT HAPPENS AT THE MOMENT
At the moment, if a Tribunal thinks it needs your medical records to fairly decide your case, you give your consent and then HMCTS write direct to your GP to request them. Your GP checks that you have given your consent, then sends the records direct to HMCTS. HMCTS then send the records out to you, the DWP and the members of your appeal panel. Once HMCTS get your records, they give you another hearing date.

According to briefings given by HMCTS to tribunal user groups (mainly solicitors), this procedure ended on 1 April 2019 when additional provisions of the Data Protection Act 2018 and the General Data Protection Regulations (GDPR) came into force.

THE NEW PROCEDURE
As we understand the situation, the new procedure is that, if the Tribunal think they cannot be fair without seeing your medical records, they will INVITE YOU to obtain your records from your GP and send them in to HMCTS. The Tribunal will not force you to get the records, or get them direct from your GP, they will just advise you that it might be a good idea for you to disclose your records to the Tribunal, and then adjourn your hearing to give you the chance to do so. The Tribunal will probably give you a deadline to do this by.

It will then be entirely up to you to decide what to do. If you do want to disclose your records to the Tribunal, you will need to go to your GP and request your records, print or collect them, and send a copy to the Tribunal before the deadline. This will all be at your own expense. See below for more information about requesting your medical records.

If you do send in your records before the deadline, once HMCTS get them, they will send them out to the DWP and the members of your appeal panel as they do now. You will then get a new hearing date too.

If you do not send in your records before the deadline for any reason, the Tribunal will apply a new strict legal test (see below) to your case. If they still think they cannot be fair without the records, the Tribunal will have to ask a senior judge to make a formal court order requiring your GP to disclose the records to the Tribunal. If that order is made, there will be a delay while the court sends it to the GP and the GP complies with it.

If the Tribunal or senior judge thinks it can be fair to you without the records, HMCTS will simply fix a new date and the appeal will go ahead on that date without your records.

BuDS thinks that there will be lots of problems with the new procedure. Claimants may not be sufficiently well to get their records, or not motivated to do it, or not be organised enough to do it. GPs may not provide records on request – they may take months to produce the records or they may insist on a fee. Printing or copying records (which can run to hundreds of pages) and posting them to the Tribunal is another hurdle which some people may find very difficult, or which they may not be able to afford. There is also the issue that GPs may not be able to disclose all their medical records to some people, especially if they have serious mental health issues or learning disability. Overall, BuDS thinks this new procedure is a huge backward step for Tribunals.

     
John Birks
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A NEW LEGAL TEST
BuDS understands that there has also been a big change to the rule about when Tribunals should start thinking about whether they need to see medical records.

Before, the Tribunal would request medical records if they thought it was ‘in the interests of justice’ to do so. This is quite a ‘soft’ test. The Tribunal basically had to think that it was fairer to you (or the DWP) for them to see your records before they ordered them from your GP.

Now, we understand, the Tribunal must be ‘unable to do justice on the basis of all the evidence, both written and oral’ before they invite you to provide your records. Being ‘unable to do justice’ is a much harder test. The Tribunal has to be in a position where it is actually unable to be fair to you before requesting you submit your records. The test has gone from ‘is it fairer to see records’ to ‘we cannot be fair without seeing them’’.

BuDS thinks that the new test will mean that many more Tribunal appeals will go ahead without medical records. It will be harder for Tribunals to decide that they need them and much harder to get them if you, the claimant, cannot get access to your records easily and affordably.

WHAT DOES THIS MEAN FOR ME?
The most important change for you is that you should now try to send in your medical records WITH your appeal.

You cannot be sure that the Tribunal will think they need to see your records and, even if they do, you will still have to get them for the Tribunal anyway. BuDS thinks it makes sense for everyone to just get their medical records before they send in their appeal. That way, the Tribunal will always have your records whether they think they need them or not.

If you can’t send your records in with your appeal form (maybe because you are running out of time), send them as soon as you get them. It always takes a long time to get your appeal hearing date. You can send them at any point before your hearing or, at worst, even hand them in on the day of your appeal (although you might be postponed).

Say you don’t send your records before the appeal hearing, but during the hearing you realise that the panel needs to see them. All is not lost - YOU can request an adjournment so that you can obtain your records. You just need to tell the panel that you do not think the panel can be fair to your case without your records, and request an adjournment. The Tribunal might not agree, but they probably will. Remember, you now have to take the lead about making sure they see your records, if you think that’s important. It’s up to you!

GETTING YOUR MEDICAL RECORDS
The good news is that, from 25 May 2018, GDPR gives you the right to have ACCESS to your medical records free of charge. This usually means being given online access to them so that you can print them yourself. Usually, the surgery will give paper copies only if it can’t give online access. You can ask your GP surgery, CAB or welfare rights advisor more about this, and this link gives more information https://www.bma.org.uk/advi…/employment/fees/medical-records

Your medical records usually consist of a summary of your conditions and medications, a record of all your appointments and contacts with the surgery and other notes, a record of all the blood and other tests you have had, and finally a copy of all the letters sent by your consultants and clinics to your GP. You can ask for your whole file, or just one of these parts of it. You can also ask for your file after a particular date - the Tribunal will usually want to see it for about a year before you claimed the benefit.

If you ask your GP for a specific letter or report for the Tribunal, they will usually charge for it. Your records are enough for the Tribunal – you don’t usually need a specific letter or report.

If you don’t want to send certain information to the Tribunal or if there is information about other people in your records which you don’t want the Tribunal to see, blank it out and say why you have blanked it. Do not just remove pages or blank out sections without explanation as it can make Tribunals suspicious.

FINALLY
This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information, not legal advice, and you should take advice on your own case. Please feel free to share this post.

If you do share this post, we require that you share the whole post without any changes, and make sure BuDS is given credit. Sharing extracts or sharing without giving credit is a breach of copyright and BuDS’ intellectual property rights and we may take action against you.

     
John Birks
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Stupid LifeLog

     
ClairemHodgson
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John Birks - 15 April 2019 10:22 AM

I always explain the medical evidence shouldn’t be adjusted to support a preferred outcome .

Eh?

my point is, its what is in fact shown by the records…....

do people really try to adjust them?!!!!

     
Mike Hughes
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“that the new test will mean that many more Tribunal appeals will go ahead without medical records”.

VERY mixed feelings about that to say the least.

     
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Leaving that aside, where have they got this notion that there is a new legal test from?

     
BuDS-BIE
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The information about a new test is from a tribunal lawyer who was briefed by HMCTS. There is apparently a guidance note for the judiciary which has not been published.

      [ Edited: 16 Apr 2019 at 12:00 pm by BuDS-BIE ]
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Care to share? In particular, I’d be interested in any reference in this guidance to new legislation or new case law that might be the basis for saying there is a “new legal test”.

Or is it the case - as UT judges often remind us in respect of DWP guidance - that it is guidance and not law?

     
BuDS-BIE
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Mike Hughes - 15 April 2019 09:32 PM

“that the new test will mean that many more Tribunal appeals will go ahead without medical records”.

VERY mixed feelings about that to say the least.

Our understanding is that panels will be expected to take oral evidence from the appellant (and PO if present) and consider the available written evidence before deciding whether to invite the appellant to obtain their records. Only if the panel then feels it is ‘unable to do justice’ would a request be made to the appellant to obtain their records. Note that this test requires the proving of a negative and, if taken at face value, represents a significant hurdle. Our view is that this procedure in policy and practice will encourage more panels to try to reach a decision without adjourning for records.

If, as expected, a fairly significant fraction of appellants do not in fact produce their records, this will act as a further discouragement for panels to adjourn for them.

The new requirement for the approval of a salaried judge to issue a Disclosure Order for records direct from the GP will inevitably have a chilling effect on the number of mandatory disclosures.

     
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BuDS-BIE - 16 April 2019 11:38 AM

The information about a new test is from a tribunal lawyer who was briefed by HMCTS. There is apparently a guidance note for the judiciary which has not been published.

Chinese whispers then.

Edited to add: it’s not good form/helpful if you substantially edit your post after someone has responded.

     
Mike Hughes
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BuDS-BIE - 16 April 2019 12:16 PM
Mike Hughes - 15 April 2019 09:32 PM

“that the new test will mean that many more Tribunal appeals will go ahead without medical records”.

VERY mixed feelings about that to say the least.

Our understanding is that panels will be expected to take oral evidence from the appellant (and PO if present) and consider the available written evidence before deciding whether to invite the appellant to obtain their records. Only if the panel then feels it is ‘unable to do justice’ would a request be made to the appellant to obtain their records. Note that this test requires the proving of a negative and, if taken at face value, represents a significant hurdle. Our view is that this procedure in policy and practice will encourage more panels to try to reach a decision without adjourning for records.

If, as expected, a fairly significant fraction of appellants do not in fact produce their records, this will act as a further discouragement for panels to adjourn for them.

The new requirement for the approval of a salaried judge to issue a Disclosure Order for records direct from the GP will inevitably have a chilling effect on the number of mandatory disclosures.

Would love to know what a “tribunal lawyer” is. Has the same meaning as “Benefits lawyer” i.e. meaningless.

The first para. above (apart from the bizarre suggestion of a new test is, in theory, the current scenario anyway. I have observed earlier on this thread that I strongly feel that the number of adjournments where GP records are genuinely needed as a way forward are outnumbered by those where it’s used by a tribunal as a means of explicitly not making a decision. Passing the buck in some cases. Preventing a negative decision in others where an errant member cannot be moved. And so on…

I don’t see this impacting my current practise very much at all.

     
BuDS-BIE
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I don’t see this impacting my current practise very much at all.

Time will tell…