Recording medicals

[nolegion]

In an effort to avoid unhelpful thread duplication\proliferation, I tried a ‘search’ and also checked back on thread titles here a few months. I assumed there would be one if not several discussions of fairly recent date to join. But…?

Before I start banging my drum about this here, anybody care to direct me to the obvious place my age and distinctly limited computer skills have missed?

Recording = audio or video recording by a claimant; medical = ‘medical assessment’, particularly as carried out by Atos in connection with ESA.

(I am not counting the thread I started some while back in the NHS forum myself, obviously. The emphasis there is somewhat different.)

Thanks.

[GRUMPYOLEMAN]

There are many posts on here that have dealt with that subject before.

 

Put simply, you cannot record the medical without the express permission of ATOS. They lay down many rules as to how that recording should take place.

 

If you record the assessment, and they are aware of it, and you are not carrying it out in accordance with their rules, they will suspend the assessment and report back to DWP. You will probbaly find that your benefit is stopped.

 

If you do it secretly, then you cannot use that audio recording in a Tribunal. You can ask if you can of course, but that does depend on the Judge allowing it, and ATOS possibly having to appear. You can however have it transcribed and that can be used, but again that evidence must be tested to prove that it represents a true, correct and complete copy of the entire assessment procedure that was caried out.

[nolegion]

Many thanks for the prompt response, Grumpy, and indeed for the summary of the position - as maintained by the DWP\Atos at least.

As regards the admissibility of covertly-recorded evidence on an appeal, I think the weight of authority is in favour of such evidence being admitted provided the recorded matter is truly relevant to the appeal and a claimant behaves reasonably in the appeal process as regards preparing and promptly disclosing a transcript (and the recording itself, if requested).

However, as regards claimants wishing to record overtly, I don’t think that the way the DWP is behaving as regards allowing medicals to be ‘declined’ by Atos, which is clearly happening even if claimants are prepared to go to the expense of complying with the detailed equipment\engineer requirements, is necessarily legal at all. I think such behaviour fails to respect a proper reading of the appeal case known as CIB/3117/2008.

I’m particularly interested in the experiences of any claimants who have recorded covertly or have tried to record overtly. I know some off-line. I was wondering about here.

[honeybee13]

Hello again nolegion and welcome to the forum. As I said to you on the NHS forum this has cropped up and I thought I read about the requirements and cost of using Atos's recording set up here, but maybe it was your thread. Hopefully someone with a better memory than mine we be along.

 

I'm sure I can remember someone here who asked to take written notes and had the 'medical' stopped. I know it's slightly off-topic, but why are Atos so averse to having alternative/neutral versions of the meeting?

 

My best, HB

[nolegion]

Thanks again, honeybee. Yes, the line appears to be you can have any verison of the facts you like as long as its ours - but I must say I have never heard of a claimant being prohibited from taking written notes during a medical assessment. That really would be outrageous.

 

(I have separate and recently experienced beef about certain tribunals trying to prevent note-taking in some circumstances, but I won my last legal argument with a tribunal on that score and strictly speaking it’s off topic…)

[nolegion]

I went in search of corroboration of the notion that Atos would go so far as not to proceed with a medical if a claimant started taking written notes.

The petitioners here certainly think that has happened:-

http://www.gopetition.com/petitions/sack-atos-healthcare.html

Good grief. That’s entirely new to me. What possible justification could there be for that?

[honeybee13]

I agree with you, no legion. It seems stacked against the poor claimants.

 

HB

[speedfreek]

However, as regards claimants wishing to record overtly, I don’t think that the way the DWP is behaving as regards allowing medicals to be ‘declined’ by Atos, which is clearly happening even if claimants are prepared to go to the expense of complying with the detailed equipment\engineer requirements, is necessarily legal at all. I think such behaviour fails to respect a proper reading of the appeal case known as CIB/3117/2008.

 

Non of that really matters though does it.... the overt recording is only legitimate if the other party taking part agrees to it. So all this 'you have to do this, that and the other' is a misdirection as ultimately it falls down on the right of the other person not to be recorded. If the individual ATOS HCP doesn't agree/is not told (as is their legal rite) at the point of starting then it's not overt.

 

TBF this overt/covert debate is absolutely pointless IMHO due to the fact it is legal for you to record a conversation which you are party to without the other parties knowledge. The only grey area is in how that recording can then be used.

 

It seams a total waist of energy to push for overt recording when you already have the legal option of covertly recording it.

 

I think a more informative way of dealing with this subject is to move the discussion forward into practical application & find out how people are using this recording when appealing decisions on ESA; if DM's or tribunals accepted it, in what form (audio/transcript) and what was the outcome.

Edited September 21, 2010 by speedfreek

[nolegion]

Speedfreek. I think there are many reasons why people would much rather record overtly than covertly. Amongst them, I dare say, the fact that the assessment will be stopped if you are dicsovered doing it, the risk of reduced quality in the recording taken, and the potentially increased uncertainty of the recording or a transcript getting before a tribunal where it is the result of covert activity.

 

As regards this alleged ‘ legal right not to be recorded’, you are not the first to have suggested such a thing. What is missing from these assertions is any legal authority for them in the circumstances under discussion.

 

The issue of whether what the DWP would like to claim is the case is valid is precisely that: the issue. There are those , myself among them, who contend that under the law as currently stated there is room to argue the ‘recording riules’ attempt to give medics an overriding discretion to decline to conduct a medical as stated is invalid ie. illegal. And there is authority for that, at the moment: CIB/3117/2008. This does have practical import - even before you get near a tribunal. I hope I may find a chance to explain more of my own recent experience of that a bit later.

 

Where I think I am very much with you, is as regards wanting everyone, but everyone, with experience of dealing with DWP/Atos when recording covertly or trying to so overtly, to keep on putting their experiences on line in well known forums where we can all see them: from what happens at the assessment centre to the Upper Tribunal and beyond. And whether they got what they wanted or didn’t. And to do so whether they are claimants, or, with their clients' permission of course, their advisors. And with as much legal detail as possible etc.

 

It has been my privilege to help one claimant reach a really very satisfactory ‘victory’ against ‘the system’ recently, and I would have been hard pushed to help think up the route to take to get there without the contributions one can find in forums like CAG etc.

[speedfreek]

As regards this alleged ‘ legal right not to be recorded’, you are not the first to have suggested such a thing. What is missing from these assertions is any legal authority for them in the circumstances under discussion.

 

If you can back this up with case law great if not it's a bit um argh maybe oh...

 

I'm saying we have a legal right to record covertly! Rather than go we would like this that and the other, which will take time and be of no benefit to anybody until it is to late! Why not concentrate your efforts on solidifying the already legal position of covert recordings.

 

Once that is done then go for the other.

 

We can't wait 2-3-4 years for a decision from a legal source one way or the other. Although there may be a moral right it's not going to keep me in food is it (well sky TV, beer, fags n whores if you like the Daily Mail)? Nor will it stop them still trying it on (see DVLA SORN post case http://www.consumeractiongroup.co.uk/forum/showthread.php?254049-BREAKING-NEWS-%96-DVLA-Loses-In-Court DVLA being bully boy wazzoks and ignoring judgement)

 

I can record it legally how?

What can I then do with it?

Can I back this up with real cases?

 

That's all I care about and all I need to know!

 

Nothing is ever as simple as it looks! The path of least resistance leaves more energy for when resistance is met.

 

Wise man bends with the winds like reed to reduce resistance. When winds stops he springs back and is fresh and ready for battle. SEAGALOLOGY 1 0 1 (or WAS THAT Tripitaka to monkey)

 

I'm quoting this as we need (especially the vulnerable amongst us (I throw my lot in with DJ here for feeling/being exactly the same)) hope and fact not pipe dreams and idealism.

 

I don't know the answer but I do sympathize with you. My doctor has advised me to not visit these websites with the benefits horror stories because it raises my anxiety level too much.

 

I am in my own benefits horror story and it's not going away any time soon.

 

You probably do have to claim for him but don't take my word for it.

 

dj

[nolegion]

honeybee. I have gone trucking to another forum to ask about this very worrying notion of assessors trying to tell a claimant that they can’t even take their own written notes. I am much relieved to say I found a clearly very knowledgeable contributor who kindly quoted chapter and verse from the ESA Handbook (as issued to the medics, I understand). Whatever has happened in the past, it is clear that the medics are now being told not to attempt to interfere with claimants so doing. One might well infer from the tone of the handbook’s text that it has indeed happened before, though. See what you think:

http://forums.moneysavingexpert.com/showthread.php?t=2737487&page=2

[nolegion]

A claimant has now made the DWP\Atos agree to recording a medical themselves and giving him a copy at the end of the interview - without cost to him.

 

Inevitably, it will be argued in due course that there were ‘special circumstances’, it’s a one off etc. etc., but it certainly seems that resistance to the recording of medicals has just got significantly more difficult to maintain:-

Edited October 2, 2010 by ErikaPNP
unauthorised link removed - please refer to forum rules re commercial links. Thank you

[honeybee13]

That's very interesting, nolegion. Where did you find it please and do you think it could help people on this forum?

 

My best, HB

[ErikaPNP]

It's on a well known website but unfortunately I've had to edit out the link Honeybee, because the website is commercial in that a membership fee is required to sign up, and as per the forum rules we cannot link to commercial websites.

 

It is a shame however an exception cannot be made because if we make an exception for this, we'd have to make an exception for every other case too.

 

However the case that nolegion mentioned earlier CIB/3117/2008 can be helpful in respect of medcial recordings. It's something I've been looking at recently in respect of recording medicals, I'd definately encourage a claimant to use it. I've never understood their defiance to recordings. Afterall, the only person likely to object to a recording is someone who has something to hide. Hardly the actions of a claimant who is "faking" their condition. The case can be accessed here

[honeybee13]

Sorry Erika, I noticed you'd edited the post after I added my comment. I'll have a read of your info and hope it helps some of the guys here.

 

HB

[ErikaPNP]

There was a member a while ago who started a petition to get medicals recorded. Unfortunately it didn't get many signatures; similar petitions have also been unsuccessful due to a lack of signatories.

 

Obviously not all claimants would want their medical recorded. In fact for some, I imagine it may make it all the more stressful so I wouldn't personally want to see all medicals recorded in a compulsory manner. However I do believe that if a claimant requests it, then it should not be made so bloody well difficult for them to do so. The cost of doing so the ATOS way would be well outwith the budget of many a claimant, particularly so when the benefit is income related, and I do think there should be a provision for recording at the claimant's request and at no cost to the claimant. If they are not prepared to do that, then damn well rework the way things are currently done so that people who are ill can get the benefit they are entitled to. Angers me, so it does.

[nolegion]

Doesn’t much matter about the link. (Save apologies for not spotting the site rule contravention.)

 

As I have been learning for the past several months, there have been so many unhappy people protesting about the DWP’s\Atos’ behaviour in connection with medicals and claimants’ wish to reord them, that now one claimant has pushed them onto the back foot, the story will now get around well enough without help from the likes of me, I guess. I was just glad to have spotted the announcement on the day it was made. (And all credit to the site concerned.)

 

And, yes, I understand CIB/3117/2008- as inconclusive a case as it is in some ways - was invoked in aid of the victory.

 

When it comes to the individual\consumer\patient\claimant vs bureaucracy\officialdom\the state\big business, the idea that ‘the only person likely to object to a recording is someone who has something to hide’ (thank you Erika) is of course the key notion, seems to me.

 

According to some, we are the most publicly ‘surveilleilled’ nation the globe has ever known. No matter what ‘knee-jerk’ reactions people used to controlling others may have, it is very difficult to defend any objection to someone’s making and retaining for their personal and legal purposes a recording of how they are treated by a (purported) professional behind closed doors.

[ukbix]

It's on a well known website but unfortunately I've had to edit out the link Honeybee, because the website is commercial in that a membership fee is required to sign up, and as per the forum rules we cannot link to commercial websites.

 

 

But you do not need to sign up and pay a single penny to view the post, as viewing the forum on that site is entirely free?

[My Turn]

Obviously not all claimants would want their medical recorded. In fact for some, I imagine it may make it all the more stressful so I wouldn't personally want to see all medicals recorded in a compulsory manner. However I do believe that if a claimant requests it, then it should not be made so bloody well difficult for them to do so. The cost of doing so the ATOS way would be well outwith the budget of many a claimant, particularly so when the benefit is income related, and I do think there should be a provision for recording at the claimant's request and at no cost to the claimant. If they are not prepared to do that, then damn well rework the way things are currently done so that people who are ill can get the benefit they are entitled to. Angers me, so it does.

 

Erika, I think ATOS's stated requirements for recording a medical assessment are based on what ATOS would require for them to accept in advance that the recording is a true and fair version of what actually took place.

 

However if a client made their own recording without ATOS's agreement then I suspect the client could offer the recording to a tribunal and it would be for the tribunal to decide for itself if the recording was a true and fair account and whether to accept it as evidence.

 

I believe one way around problems to do with admissibility of the recording are to say the client made it for himself as an aide memoir from which he made his own written notes. Of course it would be necessary for any tribunal to satisfy itself that the transcription was actually an accurate representation of what was said.

 

My Turn

[ErikaPNP]

They certainly can, myturn. I did have one experience rather recently where a claimant did exactly that. He did use the recording as an aide memoir, because his illness affects his short term memory. He takes a dictation machine everywhere he goes so that he can recall important conversations.

[My Turn]

They certainly can, myturn. I did have one experience rather recently where a claimant did exactly that. He did use the recording as an aide memoir, because his illness affects his short term memory. He takes a dictation machine everywhere he goes so that he can recall important conversations.

 

Isn't it ironic that on one hand a patient who is acknowledged to have memory problems can use technology to give them perfect recall ..... but on the other hand a patient who has no known memory problems can't later write up his own consultation as accurately because he will have overlooked some detail.

 

If you see what I mean!

 

My Turn

[nolegion]

I was chatting with ‘the bloke in the pub’ about this yesterday. We reckoned after a couple that the DWP\Atos might just have come to see the fatuousness of trying to prevent people doing something overtly which they could do, legally, covertly.

 

But what about the DWP\Atos trying to ‘control’ the situation, and maybe provide the claimant’s copy of the recording in an antique tape format few people would have the equipment to play back?

 

“No worries,’ said the chap-whose-round- it- was.”No matter what silly threats are produced, you quietly record on the mobile in your pocket anyway, and prepare your transcript from that. After all they cannot later say that recording wasn’t agreed by both sides.”

 

Seems reasonable enough to me.

Edited October 6, 2010 by nolegion
grammar

[banksarggg]

Well i recorded my medical it was extremely useful maybe not for the DWP or ATOS but for me it was because i could write down exactly what i was asked and what i replied if i was to challenge it , as my memory is poor ,

so even if it isnt legal to record it id advise people to record theirs / maybe people will say its wrong to record someone who is not aware of being recorded , but the way i look at it as , its also not nice to have a report sent into the DWP with words you never said , if its okay for them to put lies in there reports then its okay to record the truth

just my opinion

[My Turn]

However the case that nolegion mentioned earlier CIB/3117/2008 can be helpful in respect of medcial recordings. It's something I've been looking at recently in respect of recording medicals, I'd definately encourage a claimant to use it. I've never understood their defiance to recordings. Afterall, the only person likely to object to a recording is someone who has something to hide. Hardly the actions of a claimant who is "faking" their condition. The case can be accessed here [/url]

 

I've only just realised your post contained a link to a detailed decision of a tribunal. The document is very interesting and it touches upon some good points. Thank you for posting the link.

 

As an aside, although I very much support the claimant's position I had to cringe in embarrassment when I read his typo (paragraph 29) ... "‘I uncovered the political intentions to manipulate statistics hitting citizens to make them illegible [sic] for benefits". Oh dear.

Edited October 19, 2010 by My Turn

[nolegion]

I hope I am not betraying site secrets (as in those belonging to the admirable site-we-don’t-mention) but I did muse a post or two ago about the ’form’ which any recording wrested (free) by a claimant from Atos\DWP might take.

 

Well, from the news today, I’m glad that I didn’t yield to ‘domestic pressure’ and throw out that old twin-deck cassette player\recorder when moving home last year. It may be the size of a tank but it’s, only, say, 20 years old and it still works just fine if you talk to it nicely...