GP interference with Attendance Allowance decision.

[hensteeth]

Just a quickie.

 

My wife failed once again to qualify for AA.

 

The reason cited by the DWP was because of the GP's report.

 

As of yet we are undecided as if she wants to appeal, or put in another fresh claim in 6 months time.

She cannot cope with appeals.

 

Unfortunately, it seems that the report was completed by another GP in the practice who failed to notice the reports that had been received from the consultant that clearly indicated substantial needs day and night.

 

I asked the GP for a copy of the report that was sent. That was last Tuesday. On Friday, I had another load of excuses as to why they had not been able to print it off - so I told them that I would be back in an hour.

 

Before that hour was up the surgery telephoned to say that it would be towards the end of next week before it could be printed off.

 

The next thing my wife had was a telephone call from the DWP, who let slip that the GP had been attemting to discuss my wife's claim with them without my wife's knowledge or permission.

 

We put a stop to that as no one had permission to discuss anything with anybody.

 

Is it normal or acceptable for a GP to try and interfere with a claim that had been sent in?

If so on what grounds? Even I am not allowed to discuss my wife's claim with them without her express permission.

 

I shall now wait until late next week to collect the copy medical report just to see exactly was put on it.

Then I have advised my wife to raise an official complaint with the Health Authority as to the GP's actions.

 

Then take it from there.

[johnvernon74]

Perhaps the doctor was calling to advise they had missed consultants report. I'd write to the Practice Manager and advise you want a copy of everything they hold on you Subject Access Request (£10) fee. As the consultants secretary to fax the letter to DWP and ask DWP for a reconsideration.

[hensteeth]

Perhaps the doctor was calling to advise they had missed consultants report. I'd write to the Practice Manager and advise you want a copy of everything they hold on you Subject Access Request (£10) fee. As the consultants secretary to fax the letter to DWP and ask DWP for a reconsideration.

 

Yes that is what I think has happened - pure negligence. I'm going to wait until the end of this week as they asked me to, for them to get round to printing a copy of the DWP report from their computer. Give them enough rope so to speak.

 

I already hold a copy of the consultant's report, but as it wasn't sent directly to my wife (a copy which was obtained from the GP weeks ago) my wife is unable to use it without the express permission of (a) the consultant that wrote it and (b) the GP to whom it was addressed to. The GP has no objection but the consultant has up until now not replied to my wife's request.

 

I will write to the consultant once again asking if he will allow my wife to use his letter or ideally ask if he will send a copy direct to the DWP.

 

The question of whether my wife is entitled to AA or not has now been overtaken by the GP attempting to interfere with the claim.

That is the more important matter to me. You just can't have strangers trying to interfere with the system.

 

All of my energies will now be directed at bringing the GP to book.

 

To me it is no different if you found out that someone was trying to 'hack into' your private affairs.

[estellyn]

Why do you need the consultant's permission to use the report, Hensteeth? Does it have anything written on it to say you can't use it?

[hensteeth]

Why do you need the consultant's permission to use the report, Hensteeth? Does it have anything written on it to say you can't use it?

 

No. But the 'ownership' of the letter belongs to the author and the designated recipient. If the letter had have also been sent to my wife as well by the consultant it would be a different thing. It's no different to you finding a letter that wasn't addressed to you and you trying to use it for your own purposes. It's a data thing.

[johnvernon74]

Theres no reason why you cant give a copy to the DWP.

[estellyn]

Theres no reason why you cant give a copy to the DWP.

 

I agree, the data is about your wife, not someone else. She is entitled to a copy of her medical records which can be used as she sees fit. As the letter is part of her medical records, it can be used without a problem.

[Nystagmite]

Theres no reason why you cant give a copy to the DWP.

 

I've done this. I have asked for reports just to prove that I am disabled. I have never had to say I need them for benefit purposes.

[antone]

No. But the 'ownership' of the letter belongs to the author and the designated recipient. If the letter had have also been sent to my wife as well by the consultant it would be a different thing. It's no different to you finding a letter that wasn't addressed to you and you trying to use it for your own purposes. It's a data thing.

 

I don't think I understand. Presumably, in order for you to be the designated recipient of a letter regarding your wife's health, she must have given her permission for this.

[hensteeth]

I don't think I understand. Presumably, in order for you to be the designated recipient of a letter regarding your wife's health, she must have given her permission for this.

 

Sorry I may have confused you. I confuse myself all of the time as it is.

 

The letter/report was sent to her GP specifically by the consultant.

The GP gave her (my wife) a copy of it taken from the GP's computer.

The letter/report was not intended to be sent to my wife, just the GP.

 

Consequently the only two people that can use that letter for any reason is the GP (the recipient) and the Consultant (the author).

 

If the letter had been addressed by the Consultant as 'copy to Mrs ******' then there will be no problem.

 

To be able to use that letter/report as evidence by my wife and pass it on to another 3rd party (DWP) she will have to obtain permission from the author and the recipient.

 

You just cannot pass letters etc on that weren't intended to be sent to you to others with express permission. That is why those comments generally appear at the bottom of emails and faxes restricting the use of the information.

[reallymadwoman]

There is specific reference in the ATOS handbook to 'third party letters' which HCPs are supposed to ignore.

 

However

 

1. How many claimants know they shouldn't pass on third party letters?

2. How many HCPs know they should ignore them?

3. How many HCPs would be able to ignore the contents anyway?

4. And even if the HCP ignores the 'evidence' how many DMs also know the rules and will also ignore it?

 

E.g. I have a copy of a letter from my consultant to my GP. I don't know that I shouldn't disclose it to a third party so I put it in with my ESA50 form. The HCP doing my assessment sees the letter and reads it, but then realises it is a third party letter and should have been ignored. How many HCPs are going to be able to totally ignore a consultant saying 'this lady cannot walk' and contradict that in their report? Even if they don't think a letter is influencing their assessment, it almost certainly is since they also know that if a claim goes to appeal the same information is likely to be presented.

 

Bottom line is you could follow the rules (if you know them) or you could 'play dumb' and send copy letters anyway.

 

I make absolutely no comment on whether any of the supporting information I submitted with my form might have been third party letters.

[estellyn]

The information in the letter is about your wife, it is part of HER medical records. She has the lawful right to receive copies of everything in her medical file and use that information as she wishes. She is a lawful recipient of that information and as such does not need to get the permission of the author to use the letter.

[hensteeth]

The information in the letter is about your wife, it is part of HER medical records. She has the lawful right to receive copies of everything in her medical file and use that information as she wishes. She is a lawful recipient of that information and as such does not need to get the permission of the author to use the letter.

 

Yes she does. Yes it is part of her medical records and yes she has a right to see it.

 

But she does not have the right to pass that letter on to a third party. Yes she can keep it but she can't legally use it, not without permission.

 

The recipient is the person the author sent it to.

 

Good grief, you cannot go round willy nilly handing out copy letters that you don't actually have the right to distribute.

 

From memory, both the DWP and ATOS are warned that if they receive any letter or report that is a 3rd party document, they must not read or use the evidence contained within it. I'll see if I can dig out the relevant authority for you.

[hensteeth]

There is specific reference in the ATOS handbook to 'third party letters' which HCPs are supposed to ignore.

 

However

 

1. How many claimants know they shouldn't pass on third party letters?

I do so pleading ignorance would not wash

2. How many HCPs know they should ignore them?

If they are trained correctly they should easilly spot it

3. How many HCPs would be able to ignore the contents anyway?

They should be able to do so. Much the same as being a juror.

4. And even if the HCP ignores the 'evidence' how many DMs also know the rules and will also ignore it?

If they didn't they damn well should do. And if they don't a complaint should be submitted.

 

E.g. I have a copy of a letter from my consultant to my GP. I don't know that I shouldn't disclose it to a third party so I put it in with my ESA50 form. The HCP doing my assessment sees the letter and reads it, but then realises it is a third party letter and should have been ignored. How many HCPs are going to be able to totally ignore a consultant saying 'this lady cannot walk' and contradict that in their report? Even if they don't think a letter is influencing their assessment, it almost certainly is since they also know that if a claim goes to appeal the same information is likely to be presented.

 

Bottom line is you could follow the rules (if you know them) or you could 'play dumb' and send copy letters anyway.

 

I make absolutely no comment on whether any of the supporting information I submitted with my form might have been third party letters.

 

Hi, I've just seen your reply - thanks for confirming my view on this.

 

It's not ATOS or the DWP you have to worry about, it would be the Consultant and GP in my wife's case if they became aware of what had happened.

[estellyn]

Yes she does. Yes it is part of her medical records and yes she has a right to see it.

 

But she does not have the right to pass that letter on to a third party. Yes she can keep it but she can't legally use it, not without permission.

 

The recipient is the person the author sent it to.

 

Good grief, you cannot go round willy nilly handing out copy letters that you don't actually have the right to distribute.

 

From memory, both the DWP and ATOS are warned that if they receive any letter or report that is a 3rd party document, they must not read or use the evidence contained within it. I'll see if I can dig out the relevant authority for you.

 

Please do dig something up, as in years of repping for DLA, Incap or ESA appeals, I've never had a problem having evidence from someone's own medical records accepted - in fact, medical records containing letters such as these are often requested by Tribunal chairs - without the getting the authority of every consultant in the the file who has written a letter - which frankly, would be silly.

 

My understanding about third party evidence that couldn't be accepted without authority, would be for instance, a medical report commissioned and paid for by an insurance company - not someone's own medical records.

 

If you need permission to use documents gained through FOI, and subject access requests, then how do journalists get away with using and printing these documents??

 

In addition, records obtained through SAR (ie medical records) are regularly used as evidence in civil cases, for instance when suing a hospital - if the consultant was reuired to give permission for these documents to used, then hospitals could not be sued!

Edited August 15, 2012 by estellyn

[sparky514]

Unfortunately, it seems that the report was completed by another GP in the practice who failed to notice the reports that had been received from the consultant that clearly indicated substantial needs day and night.

 

The next thing my wife had was a telephone call from the DWP, who let slip that the GP had been attemting to discuss my wife's claim with them without my wife's knowledge or permission.

 

We put a stop to that as no one had permission to discuss anything with anybody.

 

This sounds to me like the GP having read the consultants letter was actually trying to help by telephoning the DWP, saying that he may not have sent in the correct information regarding your wife's condition, and could he/she re submit some extra evidence regarding her claim for AA, with the hope that the extra info would get her the AA she needs, without you having to wait another 6 months to re-claim.

 

I can see where you're coming from, but do you think you've gone a bit OTT, regarding this, after all, we all need the goodwill of our GP's,

 

My wife failed once again to qualify for AA.

 

I can imagine that you are quite upset about your wife failing to qualify again, and it must be very frustrating, especially if your wife is quite poorly, I wish you both well and hope you succeed in you claim. Xx

Edited August 16, 2012 by sparky514
????

[hensteeth]

Please do dig something up, as in years of repping for DLA, Incap or ESA appeals, I've never had a problem having evidence from someone's own medical records accepted - in fact, medical records containing letters such as these are often requested by Tribunal chairs - without the getting the authority of every consultant in the the file who has written a letter - which frankly, would be silly.

 

My understanding about third party evidence that couldn't be accepted without authority, would be for instance, a medical report commissioned and paid for by an insurance company - not someone's own medical records.

 

If you need permission to use documents gained through FOI, and subject access requests, then how do journalists get away with using and printing these documents??

 

In addition, records obtained through SAR (ie medical records) are regularly used as evidence in civil cases, for instance when suing a hospital - if the consultant was reuired to give permission for these documents to used, then hospitals could not be sued!

 

In your dealings you may have got away with it basically because no one realised that the evidence is unauthorised.

 

Civil law dictates that any evidence that is obtained that was not originally intended for your use (ie getting copies of letters from the GP that were sent to them by a consultant) cannot and should never be accepted as evidence that is unless both the author and the original recipent give their express permission for them to be used by a 3rd party - in this case the patient.

 

Yes a patient can see, handle and view their records, but what actually matters is what the patient does with that evidence.

 

In this particular case both the DWP or ATOS (Medical Services) should refuse to look at it that evidence if they are not given an assurance that the author and original recipient give their permissions.

 

In writing to the DWP it was pointed out that there is evidence available but permission had not been given to use it.

 

In any further dealings you have I would suggest that you ensure that (a) you have permission from the author and the original recipient to enter their property as 3rd party evidence and (b) inform the DWP/ATOS/Tribunal where the permissions have not been obtained but you are intending to hand over the evidence.

 

You may find that the use of the evidence you say you hand over should quite rightly be more restricted.

 

I only want to do what is right and not play on somebody else's ignorance of the law.

 

This has been taken from the handbook that ATOS use:

 

4.2.3 Unauthorised information

Unauthorised information comprises letters written from one healthcare professional to another and forwarded to a third party without the express permission of the author of the letter. Hospital discharge letters for example are often sent along with factual reports from general practitioners. Unless the General Practitioner has first sought the permission of the author of the letter it should be regarded as unauthorised. If you encounter such information, and you are unsure how it should be dealt with, you should seek advice from an experienced practitioner.

If the unauthorised information is removed from the file it may be necessary to refer the claimant for assessment by a different practitioner as your opinion may be influenced by evidence which would not be available to the Decision Maker.

[hensteeth]

Unfortunately, it seems that the report was completed by another GP in the practice who failed to notice the reports that had been received from the consultant that clearly indicated substantial needs day and night.

 

The next thing my wife had was a telephone call from the DWP, who let slip that the GP had been attemting to discuss my wife's claim with them without my wife's knowledge or permission.

 

We put a stop to that as no one had permission to discuss anything with anybody.

 

This sounds to me like the GP having read the consultants letter was actually trying to help by telephoning the DWP, saying that he may not have sent in the correct information regarding your wife's condition, and could he/she re submit some extra evidence regarding her claim for AA, with the hope that the extra info would get her the AA she needs, without you having to wait another 6 months to re-claim.

 

I can see where you're coming from, but do you think you've gone a bit OTT, regarding this, after all, we all need the goodwill of our GP's,

 

My wife failed once again to qualify for AA.

 

I can imagine that you are quite upset about your wife failing to qualify again, and it must be very frustrating, especially if your wife is quite poorly, I wish you both well and hope you succeed in you claim. Xx

 

The point in principle is the unauthorised contact by the GP with the DWP in attempting to discuss matters relating to my wife's claim. If you think that that is OK, then we might all as well get involved in each others dealings with the DWP.

 

The fact that the GP may be trying to 'cover up' a mistake is here nor there. The correct procedure is for the GP to tell the patient/claimant what has happened and it is then that the patient/claimant has the choice to refuse the GP or not.

 

Whether it means a change of decision is of no consequence. The mistake should never have happened in the first place.

 

To be honest there is no 'goodwill' between our GP and us. There is no trust or belief that our healthcare needs are taken into account.

This is just another example of our GP, who appears to be trying to 'cover up' a mistake. We have had eight years of this and quite honestly gave up asking for help from them, other than to obtain prescriptions on repeat, 5 years ago.

Whatever we tell the GP as to our abilities or non abilities is never recorded. In my case I was dismissed as a 'moaning' patient on the 4 occasions over an 18 month period when I mentioned that walking was impossible and I was having constant pain in my right leg. Early onset of Arthritis she said. 18 months later - arriving at A&E at 3am, they found the reason for the pain - very little blood was getting to my knee and there was no blood supply from the knee downwards - 60min later I was in theatre!!

[sparky514]

I'm so sorry to hear of your problems with your GP, maybe it's time to change to another practice, I'm not saying that she was correct in telephoning the DWP, but from the way I read your post it sounded like she was trying to help, anyway that's just my opinion. As in my previous post I wish you both well and hope you get things sorted.X

Edited August 16, 2012 by sparky514
?

[estellyn]

In your dealings you may have got away with it basically because no one realised that the evidence is unauthorised.

 

Civil law dictates that any evidence that is obtained that was not originally intended for your use (ie getting copies of letters from the GP that were sent to them by a consultant) cannot and should never be accepted as evidence that is unless both the author and the original recipent give their express permission for them to be used by a 3rd party - in this case the patient.

 

Yes a patient can see, handle and view their records, but what actually matters is what the patient does with that evidence.

 

In this particular case both the DWP or ATOS (Medical Services) should refuse to look at it that evidence if they are not given an assurance that the author and original recipient give their permissions.

 

In writing to the DWP it was pointed out that there is evidence available but permission had not been given to use it.

 

In any further dealings you have I would suggest that you ensure that (a) you have permission from the author and the original recipient to enter their property as 3rd party evidence and (b) inform the DWP/ATOS/Tribunal where the permissions have not been obtained but you are intending to hand over the evidence.

 

You may find that the use of the evidence you say you hand over should quite rightly be more restricted.

 

I only want to do what is right and not play on somebody else's ignorance of the law.

 

This has been taken from the handbook that ATOS use:

 

4.2.3 Unauthorised information

Unauthorised information comprises letters written from one healthcare professional to another and forwarded to a third party without the express permission of the author of the letter. Hospital discharge letters for example are often sent along with factual reports from general practitioners. Unless the General Practitioner has first sought the permission of the author of the letter it should be regarded as unauthorised. If you encounter such information, and you are unsure how it should be dealt with, you should seek advice from an experienced practitioner.

If the unauthorised information is removed from the file it may be necessary to refer the claimant for assessment by a different practitioner as your opinion may be influenced by evidence which would not be available to the Decision Maker.

 

Patients have a right under law to a copy of all hospital letters, therefore consent of the author for the patient to have the letter is enshrined in law - they are unable to withdraw their consent, therefore consent always exists, and the information is not unauthorised.

[hensteeth]

Patients have a right under law to a copy of all hospital letters, therefore consent of the author for the patient to have the letter is enshrined in law - they are unable to withdraw their consent, therefore consent always exists, and the information is not unauthorised.

 

I agree entirely with your comment, but it is what the patient does with those letters that causes the problem.

 

Yes the patient does have the right to copies of those documents, but does not have the automatic right to pass around those letters to 3rd parties viz ATOS/DWP/Tribunal without permission having been sought.

 

 

No one is saying that a patient can't see the files. What a patient/claimant cannot do, without authority, is to pass that evidence over to someone else who does not hold the authority to accept them - ie from the author.

 

Hence why DWP/ATOS?Tribunals have to be very careful in accepting 3rd party reports or letters given to them by the claimant. They have to be absolutely sure that they have permission to receive that evidence. The patient/claimant, not being the author, does not have the right or power to give that authority no matter how they came to be in possession of them - only the original author does.

 

See what happens the next time you hand over 3rd party evidence given to you by a claimant and advise that authority has not been obtained from the originating author.

Legally the evidence would be handed straight back to you advising that it cannot be used. It will be ruled as inadmissable. It could even be argued that should a decision go in the favour of the claimant, after the evidence had been handed over but returned, that the matter should be reheard on appeal as whilst the evidence had not actually been used, the contents would have remained in the mind of the person. That would have been my argument to set aside an unfavourable decision so that I could have another bite at it.

 

This situation has arisen many times in my working life. It is a very simple way of possibly getting evidence thrown out that could have helped the other side.

Edited August 16, 2012 by hensteeth

[estellyn]

I agree entirely with your comment, but it is what the patient does with those letters that causes the problem.

 

Yes the patient does have the right to copies of those documents, but does not have the automatic right to pass around those letters to 3rd parties viz ATOS/DWP/Tribunal without permission having been sought.

 

 

No one is saying that a patient can't see the files. What a patient/claimant cannot do, without authority, is to pass that evidence over to someone else who does not hold the authority to accept them - ie from the author.

 

Hence why DWP/ATOS?Tribunals have to be very careful in accepting 3rd party reports or letters given to them by the claimant. They have to be absolutely sure that they have permission to receive that evidence. The patient/claimant, not being the author, does not have the right or power to give that authority no matter how they came to be in possession of them - only the original author does.

 

See what happens the next time you hand over 3rd party evidence given to you by a claimant and advise that authority has not been obtained from the originating author.

Legally the evidence would be handed straight back to you advising that it cannot be used. It will be ruled as inadmissable. It could even be argued that should a decision go in the favour of the claimant, after the evidence had been handed over but returned, that the matter should be reheard on appeal as whilst the evidence had not actually been used, the contents would have remained in the mind of the person. That would have been my argument to set aside an unfavourable decision so that I could have another bite at it.

 

This situation has arisen many times in my working life. It is a very simple way of possibly getting evidence thrown out that could have helped the other side.

 

I don't think we're going to agree. My point is that as the patient has the right to be a direct recipient of the letter, by law, that they are not classed as a 'third party recipient'. If the numerous Tribunal judges I've dealt with accept and prefer this type of evidence with no questions over 'authority' and never being ruled as inadmissable, then I'll trust their years of legal experience over your opinion.

 

ETA And in the passage you quoted the 'third party information' is refering to documents sent by a doctor to ATOS that he/she has no right to send - a doctor has no right to send a copy of a letter sent by another doctor to a third party not legally entitled to it - for instance DWP or ATOS, a doctor can write his own report and send it to ATOS, but cannot send another doctors report to ATOS - and if he does ATOS are not allowed to read it or use it.

Edited August 16, 2012 by estellyn

[estellyn]

And from the ICO:

There may be information in an individual’s health record about another person, such as a family member or partner. This information is known as third party data. An individual can make a subject access request only for their own information. If information is clearly personal data about more than one person, you must consider the interests of all the parties before deciding whether or not you may disclose the information. So you may sometimes have to withhold parts of an individual’s record that relate to the third party if it would be unreasonable to the third party to disclose the information.

Information in a health record that identifies a professional carrying out their duties, such as a doctor, is not usually considered to be third party data.

[Nystagmite]

Surely, if someone has a letter about themselves, then they can do whatever with it?