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nolegion last won the day on February 1 2016

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  1. Hello shallowthought9 and welcome to this thread. For what it is worth I think that in the light of the clearly disgraceful way your (former) behaved it is very generous of you to contribute to a thread such as this still affirming:- “I will always agree to a recording (audio or even video) even though I am not “photogenic, as I have over the last 35years striven to be open and honest with nothing to hide.“ I am glad you got shot of the racist and congratulations on at least getting youtube to remove some of the commentary. I can’t comment much on your lawyer’s advice about ‘no further action’ because: a) I don’t know the full story and haven’t seen the video – and the last thing you would want to do online, personally and professionally, is to attract any further attention to a distorted account; and b) I am way out of date on the law of defamation (and never much did much work in that area in that specialist area in the first place.) Having said which I will hazard a guess which may be completely erroneous. To publish a distorted account on line like this can most certainly be defamatory. But I understand new law in 2013 ( which I have not studied in any detail at all) introduced a ‘serious harm’ ‘barrier’ i.e in addition to establishing defamation as under the old law the plaintiff in some circumstances might have to prove that such defamation constitutes ‘serious harm’ to the defamed. This could be totally wrong, but other patients be warned: very serious and expensive legal proceedings can be commenced on the basis of defamatory publication online, and whether to proceed or not can sometimes depend on a very fine balancing of considerations. It maybe that shallowthought’s former patient escaped by a mere ‘whisker’ of legal assessment. Any other patient deciding to behave like this might well not be so lucky. And it does ‘serious harm’ to the aims of responsible patients who want recordings for very good and perfectly legal purposes for professionals to encounter behaviour like this. Best wishes too shallowthought9, and thank you for your contribution.
  2. No problem at all. I stopped 'leading' this topic some while ago for more than one reason but including the fact that in contrast to when I started it back in 2010 - when I was really scratching around to contribute relevant personal knowledge\legal research and to find any related internet comments at all - there is now extensive internet commentary on the subject all over the place; some of it is still inaccurate, but ,nevertheless, it is now an entirely acknowledged fact that many patients would like audio-recordings of their appointments to take home - and it is well- established in this country ( and in many parts of the USA) that such activity ( including 'undeclared' recording e.g. if a patients fears an ignorant\adverse reaction from a clinician) is entirely legal. Which is where I wanted to get to all those years ago. If someone would like to introduce further facts or a particular line of discussion I would be only too happy if they re-awakened this thread, but please may I say don't rely on me for any swift response or extended reply. After all, several the other previous (and loyal) contributors probably now know pretty as much about these matters as I do, and may be happy to pick up points posted. I will, I trust, at least get around to saying 'hi' to any new contributor eventually, as I think I have always managed to, in the past.
  3. Hello, Zentrix. I am glad to say the answer to your first question is ‘yes’. You will not be breaking any law if you are doing this for purely personal purposes (such as looking after your mother). Indeed, I can acknowledge that I have, more than once, been in circumstances pretty much identical to those you describe and have always (privately) audio-recorded all such meetings. As regards your second question – concerning afterwards telling the parties involved that you have recorded them without their knowing and offering copies of the recording – well, that’s a tactical point rather than a legal one. My inclination has always been not to let on unless and until absolutely necessary. Just because you are legally entitled to do what you propose doesn’t mean to say that those with whom you are dealing know the law, or would respect it even if they did. The Nursing and Midwifery Council, for instance, have recently produced a ‘policy’ about recording by patients of their treatment which is, in some material respects, ’illegal’. They could raise spurious objections and e.g. try excluding you from future meetings, in a fashion which would obviously hinder your ability to act on your mother’s behalf. In this respect, caution is required, in my opinion. Best of luck. Legal note: this now quite old and certainly voluminous thread has had occasion to cite the relevant exemption from the Data Protection Act 1998 (section 36) many times. This statute has now been superseded by the Data Protection Act 2018 where the equivalent provision can be found at section 21 (3). Restrictions on ‘data processing’ of ‘personal data’ do not apply where it is carried out “…by an individual in the course of a purely personal or household activity.” (http://www.legislation.gov.uk/ukpga/2018/12/section/21/enacted )
  4. That quote is indeed very useful. It summarises what others have already researched and reported, but it belongs in what I think of as the 'laminate list'. As MyTturn suggests: durable pieces of succint authority to produce in the face of those ignorant of law and practice in their own field. ............................................................................ And talking of ignorance: "The medic 'took his patient hostage', refusing to take the needle out of his arm until he deleted the video" Thanks to the viewer who has just sent me the story with this strapline, from November last year. Altogether extraordinary:- https://www.thesun.co.uk/news/2182292/shocking-moment-a-st-peters-hospital-nhs-medic-attacked-patient-he-was-treating-in-ae/#comments
  5. I regret to say that does seem to be true nowadays, Ford. Indeed, some say that through progressive ‘outsourcing’ and ‘subcontracting’ the privatisation process is already under way. ……………………………………………………………………………………………………….. Spring is in the air. Three pieces of commentary, bang on topic and committed to - in my view - sensible ways of thinking about it, have caught my attention so far this April:- 1. The first is in the form of a podcast by the Wall Street Journal which is only 6 mins long (& the ‘auto-type’ version, in a rare Klingon dialect, is unreadable.) The publication of this podcast a few days ago presents an interview which apparently largely re-hashes an article Dr. Gurpreet Dahliwal wrote about a year ago. However that comes about, it is a calm and welcome discussion, in my opinion. See: WSJ Journal Report Should Patients Record Their Doctors' Visits? 4/12/2017 11:17AM http://www.wsj.com/podcasts/should-patients-record-their-doctors-visits/5E40D4E9-A22A-49BA-89AD-B26EB7FE87C9.html 2. Thinking of recording dental consultations? BY LEO BRIGGS ON 13 APRIL 2017 http://www.dentistry.co.uk/2017/04/13/thinking-recording-dental-consultations/ which opens with:- “ If a patient asks to record a consultation – do not assume the worst and think the patient does not trust you or is trying to ‘catch you out’, that’s not necessarily the case. In fact, a patient recording the consultation might actually be to your advantage. There’s often so much discussed in a consultation that the patient might not take it all in, so a recording can help to ensure they don’t miss any important information. Moreover, recording a consultation also means the patient can go home and watch or listen to the recording in their own time, consider the risks and benefits of the different treatment options and make an informed decision.” It might be worth remembering that when online discussion of our topic was still fairly new and scant some years back, it was one of the dental defence unions which published an early, succinct, positive and (well, very nearly) legally accurate response for all to see. Glad to see the profession is still on the right track. I think I may have mentioned before that when I brought the subject up with my own dentist long ago, he was entirely relaxed and accommodating about idea. 3. In many ways the most significant commentary, I think, came from no less than The Royal College of Physicians, and I suggest this really is another milestone. An article they published this month concludes:- “If a doctor practises in a professional and responsible way, any recording should act in their favour. Surveys of patients have found that they record consultations for a variety of reasons; the British Medical Association suggests ‘usually it is to help them remember and cooperate with important advice or share it accurately with family members’.4 Patients who recorded covertly suggested that they did so because of previous negative reactions from clinicians. So what should you do if a patient asks to record a consultation with you? GMC advice is that doctors must ‘make sure, wherever practical, that arrangements are made to give the patient any necessary support… using an advocate or interpreter; asking those close to the patient about the patient's communication needs; or giving the patient a written or audio record of the discussion’. As a doctor, we owe a duty of care to patients, whether they wish to record consultations or not. It is best for the patient-doctor relationship if any recording is upfront. However, if a patient covertly records a consultation, rather than feeling that trust has been irreparably broken, it is more helpful to explain why you feel uncomfortable and to explore the patient's reasons for making the recording. Such recordings are legal and look set to become ever more common.” (Emphasis mine) Refer: Setting the record straight: patient recordings of consultations 1. Niall O'Hara, Foundation doctor, 2. Lily Walkergp, trainee and 3. Kanwaljit Singh, Elderly care consultant http://www.clinmed.rcpjournal.org/content/17/2/188.full It says nothing new – but good on the authors for saying it clearly, where and in the manner they have. (PS. Dear authors – just in case any of you should stray this way: I note that each of you acknowledges an ‘affiliation’ to or with Birmingham City Hospital. I’ve had a look at the website of the NHS Trust which operates it. No policy for patients to read about recording consultations. Give ‘em a jog?)
  6. Yesterday, the Times carried two medical articles on two different pages, without any linking comment. 1. The first was headlined ‘ Doctors who trained abroad ”far more likely to be incompetent” ‘ Sources and some statistics were, of course, cited, and those included the GMC’s own records. Irish-trained, twice as likely, apparently. Bangladesh-trained, 13 times more likely, it is suggested. 2. The second article was entitled ‘Medical schools turn down 770 straight-A applicants’. It went on to explain that there is ‘a shortage of doctors in the NHS’, and: “The government says it must restrict places because it takes £230,000 to fully train each doctor. Last year the NHS was forced to hire thousands of foreign doctors to fill jobs.’ But, surely, I hear you say, there is a grotesque ‘disconnect’ between these reports and the fact that history shows it costs billions of pounds in compensation and legal fees to deal with medical bungling and unprofessionalism, and the protracted bullying, cover-ups and deceit which, always, follow (not to mention the human cost)? Can’t the government ‘think ahead’? Wrong, my friend: it already has. It removed legal aid from people claiming clinical negligence against the NHS in 2013, the miserable down-the-line effecs of which will be showing up good and soon. Problem solved: cash saved and history can be rewritten. ……………….. I acknowledge this has nothing (directly) to do with the topic I started, some years ago now. It just hit my ’rant-button’ yesterday, and I didn’t think that merited a separate thread in this forum.
  7. As regards the medical consequences of what occurred, I leave that to those more knowledgeable. But as regards the legal process: 1. It may well be the case that as a complaint to the NHS there is no reason to think that just because the process extends over more than 3 years, it is no longer somehow valid. But as regards litigation, proceedings involving personal injury will usually be 'time-barred' if they haven't been formally commenced (i.e by service of a Writ) within 3 years from the date of injury. And it's not unduly cynical, in my view, to predict that a complaint that is no longer backed by the possibility of litigation will be treated even more dismissively than before. 2. It is the case that one's own 'expert' medic can turn out quite shamelessly to conjecture 'facts' which are not supported by the written evidence. This is indeed a form of outrageous, mutual back-scratching amongst the medical profession: I have seen it happen to a member of my own family right under my legal nose. This should be addressed by the solicitors acting for the claimant (e.g. by questioning the expert on his\ her report, or by getting a new one.) If I wasn't confident that this was being sorted out properly, I would change solicitors - keeping a very vigilant eye on the 3 year limitation period.
  8. Hi, My Turn. Family reasons have kept me from contributing much online recently, but you have spotted an occasion where I did. That article really got my goat, and so I aimed a comment under it at the unprofessionalism and futility of such approaches. As things turned out, another commentator soon produced a more potent argument (at least in America) which I really liked. Yup, where healthcare is a contractual purchase, not a statutory entitlement as here, patients will sooner or later vote with their feet on this matter, and that’s where it will hurt the relevant doctors most: in the wallet.
  9. I missed this broadcast and would much like to listen to it via iPlayer. Which day was it on, please, Sali/HB...
  10. So. Farewell then 'care.data'. I would like to know how much your fiasco cost us all. Get on and share this information with us now (with no opt-out). [E.J. Cribb, 97 &3/4 (in the shade)] Ref:- https://www.theguardian.com/technology/2016/jul/06/nhs-to-scrap-single-database-of-patients-medical-details
  11. Ford. 1. A recording of a consultation taken by a patient belongs to the patient and the doctor has no right to a copy. If a doctor requests a copy for the patient’s medical purposes and is given it by the patient (which s/he elects to keep), then it should form part of the patient’s medical record & accordingly would be subject to DPA subject access requests and the like. A patient, however, cannot oblige a doctor to put an ‘unsolicited’ copy of the recording with the patient’s medical records. (N.B. Nevertheless, it can still be used as vital evidence to force written entries\corrections into inaccurate or misleading records) 2. Disclosure. This gets a bit more tricky. (i) Even if the recording does not ’identify’ the doctor concerned e.g. because his or her name is never announced during the consultation, it’s still going to constitute ‘personal data’ within the terms of the DPA, because it is to be presumed that the patient knows, or could easily find out, the name of the person who has just been consulted (and that is made relevant by the technical details of the DPA.) When a patient ‘processes’ that data (which again is technically defined - but could easily come to pass when the patient discloses it to a third party), the patient is, however, protected from contravention of the DPA by the ‘section 36 exemption’ recently discussed. Thus the patient is OK provided the disclosure concerned is made for the patient’s personal, family, household or recreational purposes. (ii) If the recipient of the disclosure is an individual who doesn’t know the identity of the doctor (and it’s not revealed by the recording) then any further disclosure (of the recording itself, say) by that recipient won’t contravene the Act either because, in the recipient’s hands, the ‘data’ is not ‘personal’ data, and is therefore not within the terms of the Act. (iii) If people are following this, there remain some questions. Let us say the patient puts a recording of the consultation, in full, and with fair context, onto the net for the purposes of finding out what other net users think of the way the doctor behaved, and either the recording itself identifies the doctor or the patient declares who it was, along with the original posting. Now, is a genuine private individual re-posting a copy of that recording, knowing and /or identifying the name of the doctor, on their own website which they maintain as a hobby, able to claim that they are processing personal data for the purposes of their personal family, household or recreational affairs? Well, I would argue that the section 36 exemption is wide enough to cover this too - in fact even just by the ‘recreational’ reference alone. But there may be room to argue about this question, depending on the precise nature and circumstances of the 'further disclosure', so I wouldn’t bet the ranch on this opinion. The moral of this, in practical terms for those keen to ‘publish’, is don’t let your posting identify the doctor in the first place. Excise any identifying references in it or accompanying it, and then it can travel like wildfire. (NB Looking at it from a doctor’s point of view, if in quest of suppressing further electronic dissemination of an 'identifying' posting, it would probably be a better bet to go after the ‘hosts’ of the recordings on the net e.g. forums or websites run by businesses or organisations. They cannot claim the s36 exemption because they are not ‘individuals’ and would have to look for various other legal arguments such as the ‘journalism’ exemption in the Act; they should be fine if the recording is accurate, but in practice most legitimate hosts will remove something identifying an individual if the individual complains, simply because they don’t want the hassle - and, on account of this, may well have rules against such 'identification' of individuals in the first place)
  12. Many thanks again, Sali. I lifted the contact details for Jeremy Hunt from the DoH website earlier today. See below:- .................................................................................... The Rt. Honourable Jeremy Hunt Secretary of State for Health Ministerial Correspondence and Public Enquiries Unit Department of Health Richmond House 79 Whitehall London SW1A 2NS Contact form:- https://contactus.dh.gov.uk/?openform Telephone0207 210 4850 Fax0115 902 3202 Textphone0207 451 7965 Open Monday to Friday, 8.30am to 5.30pm ......................................................................... Suggestion: in whatever form one contacts these people, if it the complaint is about (or includes issues concerning) the 'NHS Protect' (May 2016) ‘anti-recording’ document as discussed over the past week or so, include at least the exact wording of the beginning of the document’s title in one's communication i.e :- Patients Recording NHS Staff - but don’t hand them the URL. I suggest this because, at the moment at least, if you put that partial title (as a ‘string’) into a certain search engine beginning with ‘G’, it will return just 3 results: 2 are to the DoH source of the online document - and the 3rd is to this thread. I would soooo like some wretched little DoH bureaucrats to encounter that situation and then come to see what we think of recent developments here. In parallel with that, it’s contact your MP time, in my view. Unfortunately, mine’s a former Tory cabinet minister who also used to practise as a doctor… But then there's always the Daily Mail...
  13. Thanks for coming back to me, Ford. The point you raise centres on one of the many (and serious) actual or apparent contradictory points in the document. In this particular instance, I think the ambiguity can be partly, but only partly, resolved and I hope the following addresses your query, at least to some extent. A The ‘Information Governance’ reference is not to a phrase which reflects any particular provision of law, but to a collection of ‘issues’, above all, as the document would colour it, that of ‘confidentiality’. It is middle-management prat-speak, in my view. See for instance wikiwhatsits’s screed on the terminology: https://en.wikipedia.org/wiki/Information_governance (What a load of verbiage.) However, the document is obliged to admit that a patient taking a recording of a consultation behind closed doors is NOT a ‘confidentiality’, thus not an ‘Information Governance’, ‘issue’ in the circumstances in question. It says: “It is important to note that a patient’s own private recording is not an information governance issue. As the Trust is not responsible for generating or making the recording, it is not liable for safeguarding the confidentiality, integrity or security of such material.” (p.3) B As regards the Data Protection Act (1998) the document is also obliged to admit the Act contains a ‘let-out’ from (virtually) all of that Act’s provisions in the case of individuals behaving within the (section 36) ‘domestic purposes exemption’. The exemption is however, much wider, more open-ended, than the document wants to acknowledge. The document says, for instance, that “we [i.e. NHS] should ensure that ” … "any recording is only made for personal use" Which, in the opinion of yours truly, is load of deceitful poppycock , for a number, of reasons of which I will list but two at this stage: 1. The statutory ‘domestic purpose exemption’ is actually worded to permit ‘processing’ : “for the purposes of that individual’s personal, family or household affairs (including recreational purposes)” ( http://www.legislation.gov.uk/ukpga/1998/29/section/36) which is a significantly wider exemption. It is, above all, abundantly clear, that merely disclosing one’s recording to a ‘third party’ would NOT breach the terms of the Data Protection Act. A patient would NOT need a clinician’s consent to make such a disclosure. And thus there is NO reason to think (and this, I believe, is what truly frightens ‘officialdom’) that the posting by an individual of a complete and honest copy of a recorded consultation on the internet - - for e.g. the personal and recreational purposes of finding out what other people though about how a clinician had behaved - would in any way necessarily fall foul of the Data Protection Act at all. 2. It is NONSENSE to suggest ‘we must ensure’ things about the future use of any personal recording taking by a patient. A patient has no ‘obligation to ‘assure’ the NHS of anything in this respect all. There are, in theory at least, fairly abstruse circumstances in which the law could step to prohibit subsequent ‘misuse’ of a recording taken, some of which are very sketchily (i.e. inadequately) referred to in the document. But such considerations CANNOT be taken to justify any attempt to interfere with a patient’s perfectly legal entitlement to take a recording ‘in the first place’ (as the document puts it). I have a second-hand car which, I believe, is capable of travelling at more than 90 mph. Anyone who tries to tell me that, because of that potential for illegality,’ I shouldn’t take to the road, can go do something to themselves so dire that our host site would probably prefer I didn’t even hint at it.
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