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nolegion

Audio-recording your consultations with NHS doctors

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It’s perfectly ‘legal’ to do this for your own private purposes in the UK, whether you do so ‘openly’ or without declaring it. And you might wish to do so for any number of reasons which are not necessarily a physician's businesss (unless you choose to make it so). However, there are growing indications of doctors trying to ‘bully or ban’ those who do, or try to. Anybody with any direct experience\reliable reports of this - or (considered) views?

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I believe that you must declare and get the consent of the people you are recording if you want to use it as evidence in any future legal proceedings. I don't think it a bad idea in the scheme of things. A patient could re-run the recording to confirm or clarify information that often flies past them during a consultation. I cannot think of why a consultant would refuse unless he has doubts about his/her own ability - I guess it could both damn and help them in a case of litigation.

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Thanks for the response. I think that notion of things that can ‘fly past’ a patient during consultation is a very important consideration. Patients are sometimes pretty anxious about the advice they need to receive and that advice sometimes needs to be fairly detailed in, necessarily, a fairly short space of time. What better way of making sure you have ‘grasped the nettle’ than to listen to the course of the appointment again at home - perhaps several times? The are other good reasons one might wish to record as well, in my view, but you put your finger on a major one.

 

So why the hostility of (some) doctors, if such it be?

 

Incidentally, perhaps surprisingly (according to a legal case known as Amwell View v Doherty, anyway) a patient probably could ‘use’ even an ‘undeclared’ and thus ‘unconsented to’ recording in ‘evidence’ in the UK. (Different in some but not all eg US States, I am learning.) But I think it fair to suggest that the focus of the average British patient, when they (finally!) get to an appointment with a GP or Consultant, is on the advice (and what they want to raise\ask about it) not the possibility of future litigation - by which time, in some cases, it all might be, tragically, too late if something has gone seriously wrong at, for instance, the diagnostic\initial advice stage.

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Hostility is probably born from fear in this situation - of exposure of their incompetence and/or of litigation. I cannot think why they worry so, because it is extremely rare for a doctor to be struck off for the most gross failures - one example is Dr Jane Barton who seemingly managed to kill off a fair number of elderly patients with diamorphine in Portsmouth and is still allowed to practise! And then there's Mid-Staffs where the CEO who was ultimately (in my opinion) responsible for many hundreds of patients unnecessarily suffering and dying, actually walked away (and probably into another similar job down the road no doubt) with over a million quid.

 

Let's hope that the new government (and I won't hold my breath on this) has got the guts to change things.

 

In the meantime the patient should be able to protect themselves in anyway they see fit.

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Sadly, I, personally, strongly suspect that the last post is either very close to, or exactly, on target in every material respect.

 

Anybody else with experiences\views as regards the topic of this small discussion to date?

 

You have nothing to lose but your pains.

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Covert audio recording is perfectly legal. The crux is that you can only use that recording for personal use and cannot make it available to a third party.

 

The data may be disclosed for the purpose of legal proceedings, including prospective legal proceedings, for the purpose of obtaining legal advice, by order of the court, or if the disclosure is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

 

So in effect you shouldn't make it available to your mates, your partner or put it on youtube. You can make it known to a judge that you have a recording and (s)he can order that the audio be heard.

 

You might find this article (link removed) of interest


My advice is based on my opinion, my experience and my education. I do not profess to be an expert in any given field. If requested, I will provide a link where possible to relevant legislation or guidance, so that advice provided can be confirmed and I do encourage others to follow those links for their own peace of mind. Sometimes my advice is not what people necesserily want to hear, but I will advise on facts as I know them - although it may not be what a person wants to hear it helps to know where you stand. Advice on the internet should never be a substitute for advice from your own legal professional with full knowledge of your individual case.

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ErikaP. Thanks for confirming that in your view as mine it is perfectly legal to record an appointment with a doctor whether or not a doctor know that is what you are doing (or likes it).

 

Now, ‘evidentially’, should that ever become relevant:-

 

1. I agree that if and so far as a recording might constitute personal data within the terms Data Protection Act, there could be, in my view quite proper, restrictions on eg. web-wide disclosure of the actual recording.

 

2. I deny any such considerations would restrict your abilty to replay your recording to eg. your spouse. (If you disagree with this please cite your authority(ies): this is an ‘action’ site after all.) Indeed, you could do a lot more than this and not in any way fall foul of any law (I contend). Further, I think that idea of 'going over' an appointment with your trusted 'nearest and dearest' is an excellent notion. Consider the youthful, the elderly, the diffident, the confused...

 

I have been familiar for some while with the article in the Health Service Journal you seek to link. (one) Trouble is the link often suggests you need to subscribe, and in any event sometimes misses out the (typographically chaotic!) first and best response by ‘RIDD’(?). His\Her|Its response strikes the nail on the head, in my view, just as Sali’s has here.

 

I look forward to hearing from you.

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Whilst ‘marking time’ for a mo, I wonder if people might be interested in some recent commentary from (mostly) our American cousins on the subject. Try:-

 

http://blogs.reuters.com/great-debate/2010/03/15/iphone-app-makes-doctors-irate/#comment-29893

 

 

or, if this link doesn’t work, google ‘iPhone App makes doctors iRate’ and you’ll get to the same newspoint.

 

I don’t agree with the article-writing doctor, but the responses make interesting reading, I think.

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Interesting article. Only in America could a doctor 'fire' the patient!

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I return to this thread too late at night to add much. Thinking aloud for a minute, though, there are many ways in which this discussion could go: if I am spared, in due course I will go for analysis of that article referred to by ErikaP - and take further issue with any contention that one’s personal recording of an appointment needs the sanction of judges to see daylight. You have been warned (lol?). Anybody want to get a word in first?

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Nope. Still can’t get that article-link of ErikaP’s to fly. You get to the opening para and author’s name and are then told you need to subscribe - and that’s a £ subscribe, not a ‘register’.

 

No probs. I have a copy of the original article and I am going to summarise it for you. It was published back in May 2008 and it’s by a lawyer called Jennifer Mellani. A moment’s net-research will inform you her expertise includes ’drafting advice on NHS and non-NHS corporate structures and governance’. Nasty work but somebody’s got to do it, I guess.

 

In any event, the article makes it abundantly clear which side of the consulting room she belongs to: the clinician’s (or even more specifically, the clinician’s manager’s). A patient quietly recording represents an ‘unusual and unpleasant scenario,’ she avers.

 

The article then goes on in a clear and uncomplicated fashion to check off the number of ways in which the law is not infringed by a patient’s recording (covertly or otherwise) to arrive, shock horror, at the conclusion: it’s all perfectly legal really. But…

 

Ms Mellani concludes by offering (one) ‘solution’ as being :

 

‘…to adopt a policy whereby patients who wish to record will need to seek the permission of the clinical professional caring for them and explain the reasons for the recording.’

 

And that, in my view, is a disgrace, in more ways than one. Principally, while her article up that point had either cited or outlined the relevant law, she provides absolutely no legal authority whatsoever for suggesting that any such ‘policy’ would be lawful and enforceable at all. I don’t want unreasonably to ‘jump up and down’ on a person who, after all, could be forgiven for not being here to defend herself, but that type of approach - bland, misleading, unaccountable, and bureaucratic - panders to the some of the very worst aspects of healthcare mismanagement in the UK today.

 

Nuff said by me, perhaps, but the article provoked a long and furious response from one ‘RIDD’ about a year later, and he\she\it concluded:

 

“Treating the ‘scenario’ as ‘unpleasant’, ‘highly unlikely’, ‘intrusive’, or ‘an act of surveillance’ (whatever that might mean in the context) - and in any event something one should try to prevent in the first place, is frankly way behind the times, and to the disadvantage of both medical practitioners and their patients. Patients are NOT required to seek the condescension of your ‘permission’, to ‘explain’ themselves to you, or otherwise satisfy some form-filling ‘policy’. Get used to it…”

 

Right on.

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I have removed the link to that article having now seen it requires subscription. I accessed it via google for free. Here is the article:

 

A patient who makes a secret audio recording of a consultation with a clinician is unlikely to be breaking any privacy or data protection laws. Jennifer Mellani explains how good communication and trust building can avoid the anxiety of this happening in the first place

 

What should health service managers do if a patient secretly records a consultation session with their doctor or nurse? This is an unusual and unpleasant scenario, but one clinicians may find themselves facing.

The prevailing perception is that such an act is bound to be unlawful and that clinical professionals can rightfully object, but the legal position is quite different.

 

 

Generally, the Data Protection Act will apply in situations involving processing personal information and it has become second nature for clinicians to consider their legal obligations under the act every time they process a patient’s personal data. But where a patient decides to record a conversation with their clinician about their health condition, it is unlikely the record will contain anything other than the patient’s own personal information.

 

 

Personal matters

Section 36 of the act states that personal data processed by an individual for the purpose of his or her personal, family or household affairs, including recreational purposes, is exempt from the data protection principles and requirements. So even if the data recorded by the patient relates to the clinician, if it was made by the patient for the sole purpose of keeping a record of the meeting, the act will not apply.

 

Therefore, the fact that the patient did not seek the clinician’s consent to the audio recording will not amount to a breach of data protection law. So could clinicians rely on privacy laws instead? Only if the recorded information relates to the clinician’s personal and family life and affairs and such information is disclosed without justification. This is highly unlikely in the scenario of a patient audio recording a consultation, as the conversation will relate solely to the patient. The recording might be intrusive and could even be perceived as an act of surveillance, but it is not unlawful under privacy laws.

 

 

So if clinical professionals cannot rely on the Data Protection Act or their privacy rights, what can they do? The most obvious answer and something that is second nature to good clinicians, is to ensure trust is established between themselves and their patients. Simply providing reassurance and attention to patients could eliminate the anxiety that could lead to a consultation being recorded. Another solution is to adopt a policy whereby patients who wish to record a session will need to seek the permission of the clinical professional caring for them and explain the reasons for the recording. Both routes focus on improving communication and trust and may prevent any such recording in the first place.


My advice is based on my opinion, my experience and my education. I do not profess to be an expert in any given field. If requested, I will provide a link where possible to relevant legislation or guidance, so that advice provided can be confirmed and I do encourage others to follow those links for their own peace of mind. Sometimes my advice is not what people necesserily want to hear, but I will advise on facts as I know them - although it may not be what a person wants to hear it helps to know where you stand. Advice on the internet should never be a substitute for advice from your own legal professional with full knowledge of your individual case.

Please do not seek, offer or produce advice on a consumer issue via private message; it is against

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Thank you, EP. That article deserves airing for caggers. Law OK so far as it goes, and conclusion strenuously to be disagreed with (in my opinion). I just hope nobody tries to raise any unkind copylefting objections to your bold importation.

 

It also has the distinction of being the only on-line, UK-based, publicly-available, topic-specific article I have found in quite a few years of net-watching for commentary now. If any viewers know of the many I have missed, please wade in and make me wiser.

 

Some while ago, I wrote a discussion paper for an (off-line) fourm which, again, addressed ‘law and practice’ on the subject, and I have it on my desk now. If I tidy it up a little and post it here, there will then be at least two on-line, UK-based, etc., etc., and they will both be here at this site. Inevitably some ‘same ground’ as Ms Mellani’s article is involved (the law’s the law) but at least I wrote from the point of view of patients.

 

By way of standard preface and disclaimer, I should add that the views expressed in it are entirely personal, and while I neither confirm or deny I am in fact (yet) another lawyer, you rely on my opinions at your peril.

 

Newbie-cagger and proud of it.

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Done it. See disclaimer above. It’s quite long, and I emphasise that these are my personal views and I am no part of site Admin etc.

 

Record Your Treatment By The NHS

 

(or how to deal with the rude, dilatory, incompetent and deceitful.)

 

‘Facts before law’ and the simple fact is that the technology easily to make, store and retrieve adequate-quality audio-recordings of interviews has been within both the metaphorical and the literal pocket of many patients only comparatively recently.

 

However, over the last dozen years, say, the gadgetry has arrived in progressive spades. If now, still, like me, you have an antique mobile phone which doesn’t provide recording facilities, then let me offer a free advertisement for Olympus, a make of small memo-recorder\dictaphone which will do as well as - indeed less expensively than - many a mobile. I have used mine for work and to record all medical appoinments for several years. There are plenty of options. My student children, whilst pleading cash-strapped status on most scores, usually seem to have at least a couple of gizmos which could record and archive a movie library.

 

Now some law.

 

(i) Unlike the law in some but not all of the USA, here in the UK it is in most ordinary circumstances NOT illegal to make a recording (by tape, electronically, whatever) of a conversation in which you are involved, for your personal, family or domestic use, without tellling others involved in the conversation that is what you are doing if you do not wish to do so.

 

(i) A transcript of such recording (together with the recording itself) CAN be admitted into evidence in legal proceedings.

 

People are sometimes surprised to have this spelled out to them (and doctors loathe it!) but the situation arises in the usual rag-bag and piecemeal way of British legal evolution, by virtue of which it should be noted there are some restrictions on the underlying freedom to record, predominantly of a wholly understandable and sensible nature, eg:-

 

- A doctor cannot secretly record an appointment with you. That would be part of his or her professional, not personal, activity, and audio\video recording is forbidden wthout your express consent to it as a patient.

 

- If the prurient decide to install a hidden audio and\or video recorder in a spare-room used by their sexually-athletic guests, say, that would be both harasssment and invasion of privacy, potentially criminal and actionable whether for ‘personal consumption’ or not. (The allusion is to an actual legal case with similar facts.)

 

- It may be the case that a given conversation takes place in circumstances where disclosure of personal details is impressed with a deree of confidentiality on the part of discloser, express or readily to be implied. Even outside a professional relationship this may restrict the subsequent ‘disclosabilty’ of the information concerned and thus any recording of it. NB: This should be completely irrelevant as regards medical consultations. Since when did a doctor need to confide in you the fleshy details of her serial adultery in order advise you about your bunion?

 

- genuinely ‘bugged’ recordings of other people’s conversations, i.e without the recording person present, may struggle to get into court in quite a few (but not all) circumstances, and undisclosed recording of telephone conversations is likely to fall foul of telecommunications legislation with similar results.

 

There are other illustrations and a lot of detail I could produce, but I trust you get the overall picture. It’s completely legal unlesss there is cogent reason to hold otherwise.

 

For those who like ‘further reading’ a) your recording may or may not consitiute ‘personal data’ as referred to the Data Protection Act in respect of a clinician, but even if it does your ‘processing’ of it for your personal use provides the relevant exemption from the provisions of that Act b) there is no violation of a doctor’s ‘human rights’ eg. a right of ‘privacy’ or to ‘family life’ if a patient records how a public service such as the NHS treats him or her, so you won’t get involved in the jamboree lawyers have been having for the last decade in connection with the Human Rights Act c) a genuine, ordinary, patient is not part of or directed by a relevant public authority so as to get entangled in the provisions of the Regulation of Investigatory Powers Act (and unless you see your doctor eg. in his bedroom or private vehicle (!) your private recording probably wouldn’t be an act of ‘intrusive surveillance’ under that staute in any event) d) the case known as Amwell View v Doherty - an employment dispute - is worth a look, and is in my view mostly sensible; basically, transcript of undeclared recording by employee of her treatment by employers: admissible (‘public interest’ arguments went soundly in her favour, not employers’); but ‘bugged’ evidence, excluded; and, finally, please note that the receipt of healthcare from the NHS is a public statutory entitlement not a matter of private contract law into which terms, eg. not to record, can be levered or implied .

 

 

Do watch out for erroneous argument concerning the notion of ‘confidentiality’ in the context of appointments with medical practitioners, though.These appointments are indeed confidential and you should protest promptly and strongly if you find that confidentiality in any way breached. But the confidentiality ‘belongs’, as it were, to you as a patient, and it is thus yours to ‘waive’ or dispense with as you see fit. Clinicians cannot prevent your producing evidence of how they have treated you. That is exactly what you almost invariably have to do, so far as you are able, sometimes painfully and repeatedly to a bunch of biased, faceless and and dilatory bureaucrats, whenever you sue or press a formal complaint against any part of the NHS.

 

Further, please do not get troubled by any ‘airy’ use of the word ‘entrapment’. It is a term which has had far more currency in the USA than here until fairly recently, although we are now slowly developing our own species of entrapment law (not that it helped some members of the House of Lords recently). The essence of entrapment is that the ‘entrapper’ incites or aids, even procures, the commission of an actual or attempted criminal offence - especially where the entrapper may well be supposedly responsible for seeking to prevent the commission of such an offence in the first place. It is a tricky subject sometimes revealing rights and wrongs on both sides. It has nothing whatsoever to do with an ordinary, genuine, patient seeking to record how he or she is treated by the NHS.

 

I emphasise that the ‘basic net’ position is that it is not illegal for a genuine patient to record his or her medical appointments without declaring that is what they are doing; and evidence so obtained is quite properly admissible in legal proceedings and the pursuit of complaints seeking to establish negligence or other misconduct affecting the patient.

 

So why record medical consultations at all? If you have ever been involved in any sort of medical litigation as a patient or parent of a patient, ever tried to run a complaint against any doctor or other clinician within the NHS, or ever been involved in advising or trying to assist aggrieved, often miserable, angry, lied-to,and utterly ‘fobbed-off’ patients or their bereaved relatives, you almost certainly won’t need to ask yourself this question. If you haven’t, exercise a tad of imagination and remember that it is no good wishing you had taken out an insurance policy after your house has burned down.

 

What may happen to you if you openly record your appointments (or try to) is quite another matter: be prepared for the possibility of highly unpleasant, obstructive and wholly unprofessional treatment perhaps grossly to the detriment of your health and healthcare.

 

Don’t let yourself be bullied by doctors and their ‘system’. Good health,

 

.

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So, OK, some case studies:-

 

1. A chap suffering from both a mental and a physical illness, both quite serious at the time as it turned out, is treated by a GP who chooses to disagree with the patient’s consultants, and very clearly obstructs better-advised treatment in several ways at once, on grounds perhaps most conveniently summarised as ‘mysterious’, whilst producing ‘clinical notes’ which are at best questionable and at worst a…lot worse.

 

The patient’s care gets very ‘confused’; so does the patient, who gets very distressed indeed. With help, the patient ‘fights back’, and takes his case to the Healthcare Commission (now defunct in terms of this sort of complaint). The doctor’s account of what atually happened in consultation (as annunciated in the so-called ‘Conciliation Meeting,’ prior to the case going ‘on up’) differs materially from the patient’s. What happens? What should have happened?

 

2. A young (and, I would say, ‘clued-up’) patient likes to record her medical appointments. On moving home, she tells her new, large, GP practice this, and asks them to make sure that this fact is itself recorded prominently in her medical notes so that everyone knows what she is about, without her feeling the need to repeat her ‘explanation’ every time she might require an appointment with whatever GP she is privileged enough actually to secure an appointment with. A month or two later, and some way into an appointment, one GP, who clearly had not so much as glanced at any medical notes before she walked into the consulting room, finally actually looks at his patient and notices a - wholly ‘undisguised’ - microphone and lead pinned to the outside of her jacket. He doesn’t like it. What happens? What should have happened?

 

3. An ageing patient gets to a long-awaited appointment with a hospital consultant, who ‘brays’ at his patient from the very moment the latter walks in (and ‘brays’ is the word: I have heard the recording); and the patient objects to his not being able to get a word in edgeways, not least about changes to his condition only he can report. The ‘communication situation’ does not improve. The patient tells the consultant that, if he would shut up for amoment, he might like first to learn he is being recorded and second himself to record what his patient actually has to say. What happens? What should have happened?

 

Any takers?

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Marking time again, some background reading, or, quite possibly, cures for insomnia. First:

 

http://www.administrativeappeals.tribunals.gov.uk/judgmentfiles/j2663/CIB%203117%202008-01.doc

 

(If for any reason the link doesn’t work, the essential case reference for googling is CIB/3117)

 

This is a benefits appeal with a chap valiantly fighting, in person, a high tide of bureaucracy. However, notwithstanding the fact that, at centre, it’s a case about somebody who wanted to record how he was treated by a doctor, I think the core reasoning of the judgment (‘ratio decidendi’) is very narrow indeed, and doesn’t produce any argument that can readily be transported to apply outside the benefits system to ordinary medical consultations - either for or against the line that I take. See what you think.

 

I never know whether I want to laugh or cry when I pick my way through Judge Wikeley’s spiel. I sincerely hope (and, at least, suspect) that a form of practical justice was actually achieved in this case, but as regards jurisprudence…? Seems to me a fence is being sat on so hard it’s in danger of needing surgical removal.

 

Second, and mostly for ‘laughs’, here is a link to 50post plus debate kicked off by that (March) Reuters article I mentioned earlier in this thread (21 04 10). An old fox climbs into a dovecote full of baby American medics and things get pretty prolix and cantankerous, not to say gory:

 

http://forums.studentdoctor.net/showthread.php?p=9470404

 

(Made me laugh anyway, and buried in the debate is a reasonably extended account of the Amwell View case I have mentioned twice in this thread already.)

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I am going to get to the ‘sequelae’ to my post of 25 04 10, but as regards ‘Case 1’ in particular, it may be worth dwelling for a moment on ‘complaints procedures’.

 

At the time the first letter of complaint was written to the doctor in question in Case 1, the Healthcare Commisssion was a relatively new body and had collected the responsibilty for handling complaints unresolved ‘lower down’ on a nationwide basis. I think that the idea of a centralised review and implementation body as regards complaints against clinicians was actually a good idea - in theory. It addressed the fact that the ‘General Medical Council’ was, and remains (in my opinion, but most assuredly that of others too), just a disgraceful mechanism for bureaucratic and smug fat-cat doctors keeping the grossly unprofessional, outrageously incompetent, and indeed lethal, in practice and in funds, whilst masquerading as an ‘ethical body‘ (for hell’s sake), at the same time as wresting review procedures from the hands of the inadequate, dilatory, condescending, unwittingly-biased, untrained and ‘untransparent’, at ‘local’ (medical) authority level.

 

It didn’t work in practice, of course. Emasculated in the course of its passage to the statute books - there was at, one stage of the draft legislation, going to be a statutory right for a patient to have her complaint dealt with at a panel hearing, for instance - and grossly underfunded and underprepared, the complaints-handling side of the Commission all but ground to a halt in its first 18 months of its operation. Absent the fanfare greeting the original centralisation, the complaints system has now, quietly, been restored to the whim of eg. PCT or hospital Trust ‘Aministrators’ on a footing some say is even worse than before. Perhaps I can come back to that some time.

 

So, in Case 1… {to be continued, I hope, though presently I’m a bit pushed for time - but, please, anybody with anything to say on or in connection with the thread topic ’wade in’ any time.}

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As I was saying, in ‘Case1’…

 

There were a few surprises in store - from the patient.

 

He stayed with the original GPs practice long enough to get all copy documentation out of the building (lengthily and repeatedly withheld), changed GPs to a practice he subsequently reported as ‘supportive and excellent’, got to the treatment originally advised by his consultants, recovered well, and then fought like a dog about the earlier lack of professionalism he had encountered, which, he said, ‘damn near killed’ him. (I have, I hasten to add, his permission, of yore, to say this sort of thing!)

 

In terms of recording…? Well, by the end of the ‘Conciliation Meeting’ (see earlier posting), the patient revealed two things previously unknown to those helping him. First, he had been ‘sitting on’ a letter from one of his consultants (which had not been copied to the GP) confirming the true nature of certain discussions which the GP in question had just spent some while carefully failing to ‘recollect’ accurately; second, he had also, covertly, recorded the course of the ‘de facto’ denial(s) during the Meeting.

 

I cannot demonstrate that the recorded evidence was in fact ‘key’ here, because the matter never got to a hearing. But it would be astonishing if it hadn’t been at least an important factor. Extraordinarily, in some ways, without even fixing criteria for an ongoing ‘desk review’ (whch, in all fairness, I should confess, I had advised would be required by the legislation), the Healthcare Commission issued a 13 page letter of report in terms highly unfavourable to the GP and recommending that the local PCT (inter alia) consider referring him the the National Patient Safety Agency.

 

If I knew of a way to give ‘viewers’ some ‘colour’ by means of an unimpeachable link to the front page of the Bristol Evening Post (Weston\Western\ or South West Edition - maybe 2nd or more likely 3rd March, I think - 2006, Headline: ‘Not What The Doc Ordered’) I would do so. Anybody with better access\net-skills than me can\is welcome to supply the deficiency. You will even get a photo of the smug ‘doc’ concerned (!), I recall, but I haven’t retained a copy of the article.

 

Now for ‘Case 2’, which is closer to the main line of this thread since it concerns recording actual consultations - this time ‘overtly’. I will, in connection with this one, also be able to tell you what at least some lawyers to the medical defence unions etc advise doctors about patients who record. I know because I have seen, and retain, copy notes, as recorded by doctors, of the legal advice they have received. Like most of us I trust, I have every respect for good doctors, none for bad. Same goes for lawyers.

 

(Once again, I didn’t, particularly as newbie, aim somehow to take advantage of cagger-land just, as it were, to ‘blog’: if you have anything to add\question\contradict please have the floor. There’s little I have to say which can’t wait a while longer - as long as need be, in fact. I would welcome other views\experiences. Perhaps other viewers would, too.)

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This post deals with ‘Case 2’ (see post 25 04 10 ), and the long and the short of it is that the patient was very badly treated indeed.

 

The first doctor had duly noted what the patient had said, and had raised no problem with it; but that clinician was only a ‘registrar’ (employed doctor, not a partner) in the GP practice. The partner she saw subsequently set about enlisting all the other partners in the practice (I have seen the emails) to agree that this was just ‘not on’.

 

He also spoke with his union legal advisers who told him that he was not able to refuse to treat a patient just because he\she recorded appointments. But he could set about arguing that the ‘patient-doctor relationship’ must, somehow, have ‘irretrievably broken down,’ at some stage, and then the practice could, provided it took all the right bureaucratic steps, eventually, ’sack’ the patient under the (limited but complex) statutory provisions to that end.

 

Now, truly, the relevant provisions are detailed and tedious - frankly too tedious to be dissected in this (or any other, sane ) online forum. But I say that advice was utterly fallacious in law, and wrong in practice - devious, conspiratorial and bunkum. Properly considered, you simply cannot bend the small print in that way. There was and is no ‘problem’ with the patient’s professional relationship with her doctors - or any doctor. She is candid, courteous and clear. She is just not ‘compliant’ when it comes to arrogant quacks trying to limit her ability to keep full records of how she is treated.

 

How do I know that the GPs were ‘legally advised’ in this fashion? Because the silly ass of a doctor put it in her medical notes! He probably thought he was being terribly clever…

 

In practice, of course, the patient, though absolutely no pushover, found herself being so hostilely treated whenever she went to the surgery that she jumped ship to another practice, anyway, for her health’s sake…where she continues openly to record (and she has little but praise for her healthcare there).

 

In this matter, I might add, the General Medical Council were alerted to the shabby behaviour of the GPs. They sat on their hands, whistling, whilst looking in the other direction - apart from saying that if anything needed doing the PCT should do it. The PCT had already been informed. They said that in the absence of ‘ethical’ guidance from eg. the GMC, they, alas, really couldn’t see their way clear….(oh for goodness sake!)

 

I have good reason to believe that the type of advice retailed to the GP in this matter is not at all ‘robust’ i.e it will fall over if you blow on it hard enough. In a case with very similar facts (which for reasons both professional and personal I cannot further detail here), a letter suggesting that perhaps all possible parties. i.e patient, doctors, GMC and PCT, might like to discuss the matter with a Judge in an application for leave to apply for judicial review seemed to re-arrange the relevant doctors’ minds on the subject, very swiftly and peaceably.

 

There is, in my opinion no good reason whatsoever, why you shouldn’t record your medical comsutations if that is what you want to do, and you should not feel obliged, still less be bullied, to declare ‘reasons’. You may, however, have to’ fight’ to preserve that right. Many of us, faced with the risk of being ‘bullied and\or banned’ as in this example - particularly when in the very nature of things we may not be feeling in the best of health - may well feel it easier just to record without declaring it at all. As firmly established in this thread, I believe, that is perfectly legal; and the ‘covert’ element of it comes about, I would suggest, principally from the attitude of doctors (and\or ‘Administrators’ advised by the likes of Ms Mellani see earlier posts), not patients.

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Wisps from the net

 

This morning I revisited a forum which I had stumbled on quite a while ago. There was a thread where people had been discussing, quite vigorously, the pros and cons of recording interviews with or ‘assessments by’ medical people for the purposes of establishing or preserving entitlement to types of sickness\disabilty benefit - or trying to. I never contributed to the thread.

 

Not surprisingly, people had got round to quoting the benefits appeal case CIB/3117 (see above - and indeed it was that ref. which alerted me to the thread in the first place.)

 

I think that the debate had been going quite fast and furiously enough not to need someone like me to stir the pot even harder, and I don’t know much about benefits in the first place. In any event, one could no longer contribute. Things had got pretty heated between two contributors it seemed, and site management had called a halt by locking the thread.

 

But I wanted, today, to draw viewers attention here to a piece of at least ‘anecdotal eveidence’ posted there as to what just might have been going on behind the scenes in the Dept. of Work and Pensions in the run up to Judge Wikeley’s decision.

 

However, two things have changed. First, the thread appears to be ‘open’ again. Second, the specific post I wanted to draw your attention to seems to have ‘vanished’ (along with one or two others, if my memory serves correctly).

 

Now, these were the ‘recording rules’, put in place by the DWP, as considered by Judge Wikeley:-

 

“Claimants may request that their interview and assessment by a Medical Services doctor in respect of a benefit claim be recorded either on audio or videotape. Such a request can only be agreed with the prior consent of the HCP [health care professional, in this case an examining doctor], and then only if stringent safeguards are in place to ensure that the recording is complete, accurate, and that the facility is available for simultaneous copies to be made available to all parties present. The recording must be made by a professional operator, on equipment of a high standard, properly calibrated by a qualified engineer immediately prior to the recording being made. The equipment must have facility for reproduction so that all parties can retain a copy of the tape.

 

The responsibility for meeting the cost of the above requirement rests with the claimant.

 

Any request by a claimant for an assessment to be audio or videotaped must be declined unless the above safeguards are in place.” [Extract: CIB/3117]

 

Well, you don’t need to be agenius to spot the weasel wording here. It is not the daft, oppressive, rubbish about recording standards (just how many qualified engineers do need to calibrate a mobile phone?) but:

 

“Such a request can only be agreed with the prior consent of the…[healthcare professional]…”

 

Which brings me to ‘ATOS’. They are the ‘medical people’ under contract with the DWP to provide services such as ‘assessing’ benefits applicants, I understand. Should you want to know more, try:

 

http://www.dwp.gov.uk/healthcare-professional/guidance/atos-healthcare/

 

The post which I remember, but which has ‘vanished’, claimed that at least in one instance a claimant had gone the whole nine yards: ‘operator’, ‘calibrator’, twin recording decks, the lot - and still the ‘assessor’ would not proceed. Indeed, it was alleged, the ‘medical people’ threatened ‘a riot’ if the DWP tried to make them carry out any recorded interviews.

 

Now I hasten to emphasise that is an allegation for whch I have no proof, the status of the contention is entirely anecdotal, it relies on the imperfection of my own memory, blah- de- blah (insert disclaimer till crack of doom).

 

Be that as it may, there remain, I’m glad to see, comments in the thread I’m discussing suggesting that the ‘recording rules’ wording was just a ’try on’ by ATOS - BUT does anybody know what the current ‘recording rules’ are? Did CIB/3117 actually change anything?

 

The thread in question was\is:-

 

http://forums.moneysavingexpert.com/showthread.php?t=1901257

 

and, lucky ol' site, it's just got a new member, called 'nolegion'.

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The last of my three ‘cases’ (see post 25 04 10) is the shortest and sweetest to report.

 

What happened next? The consultant started to ‘eat out of the patient’s hand’, would be the usual metaphor, I think. I cannot hear on the recording the (reported) facts that he went first very white, and then very red, and looked longingly at the door before the consultion got back on track, but I can hear the slight ‘gasping sound’ and the ringing silence which followed.

 

After that it was a doddle. The patient had copies of his own medical notes, and was far from convinced that his condition was as serious as perhaps ‘accidents of communication’ had led some to believe. He also was able to report, succinctly, his own view of ameliorating symptoms.

 

The balance of the appointment took scarcely more time than it had to get the consultant to listen properly in the first place, and ended with courtesy emanating from the consultant almost unctuous, plus an assurance that if things changed the patient was welcome to a further appointment at short notice. I call that ‘a result’.

 

(Now just where could that patient, who happens to be a relative of mine, have got the ideas of recording appointments and taking his own copy notes into any consultation?)

 

Anybody who has had the patience to follow me thus far will not be surprised to learn I have a couple of further points to make in connection with this ‘case’. But it’s getting late, and today I’m too tired. If you have been, thanks for listening.

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For anybody with the remotest interest, I can now comment to the effect that as regards a ‘medical’ in connection with benefits, whatever the law says, the perceived wisdom seems to be, still, that you will effectively be prevented from recording (if you declare that’s what you want to do). See a fresh thread from the site I referred to last time:

 

http://forums.moneysavingexpert.com/showthread.php?p=32313179#post32313179

 

 

I don’t think that the situations of ‘benefits medicals’ and ‘ordinary’ medical consultations are quite parallel, but it has some passing relevance to the overall argument.

 

Still want to get back to some more ‘main line’ points, but time presses.

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I suggest that the Freedom of Information Act should be amended to provide that in every doctor's, solicitor's, accountant's and other professional adviser's waiting-room, a notice must be displayed to the effect that if the client wishes to record his consultation by electronic means, he is free to do so; but if he does so covertly, the recording will not be admissible as evidence in any legal proceedings. (At the adviser's discretion, the notice might go on to say that on request in advance, the adviser himself will provide the client with an electronic recording of the consultation for a fee of £whatever.) As you can tell, I am not a lawyer. I am also old enough to realise that these ideas are far too sensible to stand any chance of being enacted. :roll:

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Fred2009. First, thank you for joining the thread. I was getting very bored with just the sound of my own voice. Second, please may I say I think your legislative proposal is essentially admirable. Third, alas, I agree that it is far too sensible to be likely to make onto the statute books any time soon.

 

In a bit more detail:-

 

- My guess is that although it would look ‘kind of democratic’ to include other professions within the you-must-allow-recording section of your Act, actually you might be pushing at an open door. Most professionals other than medics who I have ever asked for their opinion on this matter have said, ‘if they want to record, that is their privilege,’ or words to that effect.

 

- As regards doctors etc., I, personally, think that proceeding by way of letting patients know that it OK to record (without question) is exactly the right move. But I immediately want to emphasise a sharp distinction between that ‘open acknowledgement’ and any condescending, form-filling, bureaucratic, permission-granting, ‘policy’. (Thank you, ‘RIDD.’) The latter would be, I believe, a disaster within the NHS. (If you haven’t had a chance within this now very long thread, see reactions to the notion of a ‘patient-hostile’ policy as suggested by one Ms Mellani, earlier.)

 

- As one commentator has put it elsewhere, ‘the call on this should be in the hands of the patient, not the doctor’, and that is quite literally true ‘de facto’, let alone ‘de jure’. But as regards medical practice - ethics even - the lead should come from precisely where we can all be sure it won’t: the General Medical Council. It wouldn’t need statutory or common law developments. It would mean knocking some pompous, self-serving heads together and updating statements of good medical practice to make it absolutely clear that there is no earthly reason why patients shouldn’t be permitted to record their consultations, and even be encouraged to do so in some cases, perhaps. (There is ample existing law to curb any misuse\abuse of the recordings so made.)

 

- As long as it is clear that a patient is not going to be ‘bullied or banned’ for wanting to record overtly I can keep an open mind on whether or not anyone should still formally be ‘banned’ from recording covertly (and/or, even, have their recording rendered inadmissible as evidence, as you suggest). Perhaps - and I certainly think a doctor who knew that his patient was aware she could record openly without question would be quite within his rights to question why a patient was recording covertly, if such were discovered. In practice though, I think the ‘covert’ problem, which is attractive to few I would suggest, largely evaporates as soon as your notice is on the wall. Why try to hide what you can do more easily in the open?

 

But whether by means of kicking the GMC in the crutch, by Fred2009cam’s ‘Freedom of Information (Medical Amendment) Act’ or by any other means, notices at least some way along the lines you envisage - and I can see in my mind’s eye in surgery waiting rooms, in hospital corridors, consulting rooms, clinics (so quickly and cheaply done!) - cannot arrive too soon. Because the recording patients are already there.

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The Catch 22s which mostly aren’t

 

 

To summarise some strands from this thread:

 

1. Concern: I would like to record openly but fear I might be ‘bullied or banned’ if I do.

 

Response: sadly, your fears may be justified, BUT…unless and until the ‘medical system’ grows up, or some flash of common sense is enforced (see eg. Fred2009cam’s suggestion 01 05 10), or you otherwise have good reason to belive you are ‘safe’, record covertly and hang ‘em: it’s perfectly legal. (me passim; and, as regards legality, ErikaP 20 04 10, and imported J. Mellani 22 04 10)

 

See also Sali 20 04 10: “In the meantime patients should be able to protect themselves in any way they see fit.”

 

2. Concern: I have got my recording but it will be illegal to do anything with it.

 

Response: most things most reasonable people would want to do with it will be perfectly legal. Don’t link any part of your actual recording to the net (!), but if you want eg. to quote in print one or two things a doctor has actually had the gall to say to you, go ahead.

 

(See ErikaP 20 04 10 again, - and me contending that you can go a bit further than that, see my post same day; I’m about to come back to that, all being well.)

 

3.Concern: If I need to ‘use’ my recording eg. for the purposes of making a complaint, or if any clinician ‘spots’ me quietly recording, I might get ‘banned.’

 

Response: there is a risk of the wrong sort of medic trying this on. I think it is illegal to try to ‘ban’ a patient solely on the ground that they want to record ,or indeed have recorded, but you might have to’ fight’. Unless anyone has experience to the contrary, I don’t see how eg. a hospital consultant can actually obstruct your path to treatment, but a silly ytpe of GP might try to get you off their ‘list.’ If you can, fight and win! I have at least some experience of their being made to back down (see ’case study 2,’ above, 28 04 10). Good clinicians, confident of their own performance, won’t give you problem, in the first place, of course.

 

[Time to remind disclaimer-wise: these are my personal views and I’m no part of site admin etc.]

 

 

Using your recording

 

I have oultined some background restrictions on the ‘freedom to record’ (in or out of medical settings ) on 23 04 10.

 

However, people usually pounce on concerns arising under the Data Protection Act. These, in my view, are somewhat more ‘remote’ than is sometimes thought.

 

It is possible that your audio-recording might constitute ‘personal data’ in respect of a clinician. It is possible, depending on exactly what you do with your recording that your use might constitute at some stage constitute ‘processing’ within the terms of the Act. It is therefore just possible, that you might technically be held to need to register as a ’data controller’ with the Information Commissioner’s Office and thereafter you would to need make sure your ‘processing’ abides within by the (chaotic) ‘data protection principles’ under the Act, unless one or two of the broad exceptions to this regime applies as regards your use of a given recording.

 

But, frankly, none of that is very central to what you are actually doing (i.e, as a ‘legalistic’ argument, it’s ‘bunkum’). Someone is going to have establish a lot of detailed facts and partly untested law against you, and… in the real world …and for a recording by a patient\consumer of a rude\incompetent quack…? It’s absolutely not what the current Data Protection Act or its predecessor is\was about.

 

I am not advocating that you in any way set out to breach statute. I am saying that it is far from clear when, in the circumstances envisaged in this discussion, the Act’s precise terms would ever be breached. In purely pragmatic\practical terms, without going into any further anaylsis of the detailed provisions at this particular stage, I suggest that, if you have a recording of a consultation or two which you think need(s) ‘getting onto the table, take the trouble carefully to prepare a full transcript; then, at least clearly ‘footnote’ it as having been prepared from a recording, and thereafter ‘bat on’ using the transcript rather than the recording itself. If anyone challenges you as to the accuracy\veracity of the transcript after that, ‘wheel out’ your recording with no real fear whatsoever.

 

Now, for those ‘broad exceptions…’ which are likey to apply in most usual circumstances, I would suggest, in any event.

 

Next post.

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