medical records

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medical records

Post by Stayalive on Sat Oct 10, 2015 9:56 pm

Hi everyone.
when the Force is conducting a review can you consent to only supply medical records from the date of the last review rather than the full medical records.
Does any one know any case where this has happened or where any authorotative rulings have been made
Thanks in advance

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Re: medical records

Post by Urtica on Sun Oct 11, 2015 3:31 pm

One answer to your query could be to ask a different question: 'Why do you have to consent to allowing access to any of your medical records?'

There is nothing in the Regulations which authorises a police pension authority to demand access to any personal information whatever. I don't think this was an oversight. The Regulations could easily have included something to cover this, but instead they confine themselves to directing only how the SMP is to deal with a situation where a pensioner, 'wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision.' (Regulation 33 Refusal to be medically examined. The Police (Injury Benefit) Regulations 2006)

Some SMPs interpret the mention of ' medical examination' and 'interview' as meaning they can request access to medical records back to birth. Some forces push the limits of interpretation even further and believe they can request all sorts of sensitive personal data, including earnings, savings, vehicles owned and driven, together with permission to contact former and present employers, the Department for Work and Pensions and your GP and other medical professionals.

These requests come across as demands. A very official looking form will require the pensioner to fill in all the detail, and to sign a declaration that the information is not inaccurate or misleading. Then there is inevitably added the veiled threat - 'If any information is inaccurate or misleading it may affect any entitlement to an injury award.'

No explanation as to how or why, and under what authority - just a nasty little jab in the ribs to help ensure the pensioner is frightened into giving all the information requested.

One force, Avon and Somerset, was even more inventive. It's intrusive little questionnaire sent out to disabled former officers, many of whom are in delicately balanced states of mental health, required the pensioners to sign a declaration that, 'I understand that I may be liable to prosecution and/or payment of my injury award may be reduced or suspended if I have provided any information which is either misleading or inaccurate.

Another force, South Wales, via its 'Health, Care & Safety Team' which seems to have a redundant comma in it's title, ludicrously asks for permission for the 'Department of Working Pensions' to be approached for information.

It is tempting to imagine some pensioners were perplexed and perhaps concerned about draconian punishments for understating their weekly mileage by a mile or two, or with mention of non existant Government Departments. Concerned, that is, if they were not laughing at the mentality of the functionaries who could produce such drivel.

Whenever legislation is silent on a matter, that is not an invitation for anyone to fill in the gaps in any way they please. The Regulations say nothing about police pension authorities being allowed to demand sensitive personal data, whether of a medical nature, or about one's finances, sporting activity, lawn-mowing frequency, consumption of health-giving vegetable produce or trips to Majorca. When legislation is silent as to whether the processing of personal data is legitimate or not, then in such cases, the presumption must be that since the processing is not expressly permitted, it is likely to be unlawful.

Unless, of course, there is some other legislation which covers the situation.

The Data Protection Act, Schedule 1 sets out eight principles governing how data must be handled. Included is:

'Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless -

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met
.'

So, we need to look first at the conditions in Schedule 2, where we find that consent from the 'data subject' is needed to allow processing of personal data, 'for the exercise of any functions conferred on any person by or under any enactment.'

Well, clearly, when a police pension authority gets a signature from a pension that is consent. But is it properly informed consent? What is the effect of threats or warnings, or the lack of any explanation about how the data will be processed and held? Does this make the consent null and void, under provision of another Data Protection Act principle, that of fairness?

Leaving those matters to one side for a moment, it seems that the argument offered by a police pension authority as to why it wants the data is that it is needed to allow the SMP to exercise his function. Therefore, we need to question whether the SMP really does need the data - is it essential to him determining, when conducting a review, whether there has been any alteration in degree of disablement?

Before we examine that any further, though, we have to follow the twists and turns of the Data Protection Act one more step and look to see if in addition to the data being obtained with consent, and being necessary to the task of the SMP, whether, 'at least one of the conditions in Schedule 3 is also met.'

Schedule 3 is concerned with not any old data, but sensitive personal data. A pensioner's medical and financial information is most certainly both sensitive and personal.  The schedule again repeats that consent must be obtained from the data subject and states that it must be the case that, 'the processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.'

The police pension authority has an obligation to ensure that the correct level of injury pension is paid, and the review provision is there to allow the PPA to meet its obligation. However, it is highly questionable whether the nature and extent of the data routinely requested by forces is necessary for the PPA or the SMP to fulfil the obligation to ensure injury pensions are paid at the correct rate.

Then again, is a review under regulation 37 an action taken, 'in connection with employment'?

This is doubtful. Sensitive personal data relating to any time following retirement from the police could not conceivably be said to be in connection with employment. It would be in connection with your injury pension.

I would like to see someone ask the Information Commissioner to give his opinion on this point.

Meanwhile, we have to hand an opinion by the ICO on the matter of fairness, which is a good fit to the situation referred to above. When forces request personal information, or permission to obtain personal data from third parties such one's GP, the DWP, etc. have they done so whilst misleading the pensioner?

Probably, yes. Certainly yes, in the case of the baseless threats contained in the Avon and Somerset questionnaire. However, there is the general well-founded view, held by many IOD pensioners, that their force does not conduct injury pension review within the Regulations. Surely, then, obtaining data which is gathered and used in an unlawful review procedure could never be said to be processed fairly?

The Information Commissioner warns data holders, via his website: 'You should also remember that whatever you tell people, and whatever you notify to the Information Commissioner, this cannot make fundamentally unfair processing fair.'

Finally, we come to the task of the SMP, who acts for the PPA. When conducting a review the SMP is there to decide whether there has been any alteration in degree of disablement, since the time of the last final decision.

The SMP is not permitted to revisit or second-guess matters of apportionment or causation. He therefore has no need to access any personal data which pre-dates the time of the last final decision. That could be the time of the last review, or, if there has been no review, the time when the injury award was granted.

The SMP, as we can see from regulation 33, mentioned above, is expected to be able to carry out medical examinations and interviews. I see no reason for any competent duly qualified medical practitioner needing full access to the extensive range of personal data which forces currently seem to think they have a right to request. It should be possible for the SMP to decide the question without needing any GP's records. A simple interview and examination by a duly qualified medical practitioner should be capable of detecting whether there has been any alteration.

Financial information is irrelevant, as degree of disablement is a measure of one's capacity to work and thus earn, not a measure of how much or how little one earns. The Regulations are blind concerning employment or the lack of it.

If, on the day, the SMP thinks that a report from the individual's GP might assist him in his deliberations, then he can ask for one. The pensioner can decide whether to agree to the request or not. The SMP most certainly should not be given unrestricted access to one's entire medical file, as it will contain information on other medical matters not relevant to his task, and may well also contain information about third parties, such as family members.

I think any pensioner attending a review should not give any permissions, nor divulge any information to the force, but instead should see the SMP and then, and only then, come to an agreement with the SMP as to exactly what information he might need.

Currently some forces are heading out to sea, on uncertain waters, where they hope to conduct fishing expeditions. They want to hold reviews so as to determine whether there has been any alteration in degree of disablement. They dress this up by claiming that they want personal information so they can decide whether to call in the SMP.

What they are really doing is trying to save the cost of the SMP conducting an examination and interview. We have no idea who gets to see the information they demand, what their professional qualifications, are, if any, or who is making the decisions as to whether to call in the SMP or not. We know for certain that at least one Chief Constable considers himself competent to determine medical matters, when clearly he is not and has no legitimate reason or authority to access personal medical data.

We have no details of how the sensitive personal medical and financial data will be handled. Forces do not inform pensioner by means of a 'privacy notice' how their data will be managed.

The Information Commissioner has issued advice about privacy notices:

' As a minimum, a privacy notice should tell people who you are, what you are going to do with their information and who it will be shared with. However, it can also tell people more than this. It can, for example, provide information about people's rights of access to their data or your arrangements for keeping their data secure. Whatever you include in your notice, its primary purpose is to make sure that information is collected and used fairly'.

It seems to me that some forces have little idea about the Regulations - they have made that painfully obvious for some considerable time. We can add to that area of incompetence their lack of  understanding of the Data Protection Principles.

On that basis, until such time as pensioners can be confident that personal data will be held and processed fairly, and only for a legitimate lawful purpose, then it would seem to be prudent to be very careful and selective as to what data you allow access to, and to whom, and when.


Last edited by Urtica on Tue Oct 13, 2015 10:41 am; edited 1 time in total

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Re: medical records

Post by petew on Mon Oct 12, 2015 12:03 am

Although I have been a regular visitor, I hadn't registered for the new forum until now. Urtica, that is possibly the best reply to any of the posts (old and new) that I have read. Nice job Smile

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Re: medical records

Post by White Horse on Mon Oct 12, 2015 8:04 pm

I agree, I have copied Urtica's post to a file on my PC for future reference.
Excellent!

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Re: medical records

Post by RedDog on Mon Oct 12, 2015 10:18 pm

Yes, another one up on my favourites as well! The information and arguments are laid out so clearly that it gives you much more confidence in dealing with the official side!

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Re: medical records

Post by Stayalive on Tue Oct 13, 2015 5:39 pm

Thanks Urtica for the comprehensive answer to the question.It is appreciated by all.

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Re: medical records

Post by alexvern on Wed Oct 14, 2015 12:25 am

I expect to be called for review so thank you. Most informative

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That's the theory......here's the reality.

Post by Defender on Fri Oct 16, 2015 4:43 pm

I have been dealing with a single continuous review since 2006 and you may be interested in my little story concerning medical records. I did post this subject on the old original forum which is now locked and I have copied & pasted the majority of it below. Do keep reading to the end as there important and very recent updates on this very long saga.
“I was medically retired from Northumbria Police in 1999 with a high injury banding after 14yrs service. My first and current ongoing review started in 2006, when I was contacted by NP asking for my full medical records to be released to the SMP. I duly made an appointment with my GP in order to view my medical records prior to releasing them to the SMP. I discovered that there was reference in my records to a close family member, this is known as a ‘third party identifier’ these entries were very historic from the late 1960’s when I was 4 & 5 yrs. of age. Never the less I did not have the legal authority to release information relating to another individual without their express consent. I contacted both the PA and the SMP explaining my situation and that I was able to consent to a partial release of my medical records and that I was happy to attend for a physical medical examination with the SMP. Many months of written correspondence then ensued between myself and the PA who remained completely intransigent and continued to demand the full release of my medical records stating that unless they received the full records then I was effectively guilty of Reg 33 of Police (Injury Benefit) Regs 2006 “ Refusal to be medically examined” despite the fact I was continually asking for a physical examination! After many months I eventually received a reply from the SMP who did offer to discuss the situation with my GP to see if any progress could be made into this situation. However the PA were having none of this and they withdrew all of my injury banding payment on the grounds of Reg 33 above. A few days later I received a legal letter from the PA alleging overpayment of one month’s injury pension and demanding that if this amount was not repaid to them within 7 days they would commence legal action against me and they kindly explained in the letter the consequences of a County Court judgement being made against me etc.
I refused to repay the amount demanded from me on the grounds that ‘the debt’ had been instigated by the PA themselves unlawfully. I received legal assistance via branch board just in the nick of time! From RJW who managed to get the debt proceedings swiftly stopped. RJW began a long drawn out correspondence period with the PA which after approx. 18 months had not made any progress as a result in April 2008 I attended a permission hearing for a full judicial review at the High Court in London. The judge ordered that the only medical records that were relevant in this case were from my adult years onwards and only those should be released and that the SMP should conduct a physical medical examination. The PA did not have a good day out in London! I insisted with RJW that by injury pension be fully restored with back pay or it would be necessary for a full judicial review to clarify on exactly what legal grounds the PA had to stop the payment in the first place. The PA clearly did not want to risk a full JR hearing and therefore my injury pension after nearly 3 years of having been stopped was fully restored with back pay pending the medical examination by the SMP. I eventually had my long awaited medical with the SMP in 2010 however shortly afterwards HOC46/2004 was declared unlawful and reviews were suspended”
I heard nothing more from the force until late 2014 when I was informed they were in a position to ‘resume my incomplete Reg 37(1) review’ and in May this year my injury pension was reduced.  I lodged an appeal to the PMAB with the assistance of Ron Thompson solicitors Tadcaster.  At this point I best introduce Health Management Ltd   http://www.healthmanltd.com they are yet another private health company currently contracted by the Home Office to provide the ‘services’ of the PMAB. And of course they are ‘an independent body’  I will refer to them as HML. After initial paperwork was sent to HML as instructed I was contacted by them for a general consent form. This was to grant permission for a clinical examination/interview and for a report to be complied for the Home Office etc. All part of the due process and of course I consented and signed the form. There was NEVER any mention of full GP records and there was NEVER any request from HML for full GP records. That was two weeks ago……this week my solicitors received a copy of a letter from HML to Northumbria Force Solicitor stating that unless the appellant (myself) did not comply with full GP record release the board would consider that…..and I quote ‘ the appellant is being vexatious and attempting to interfere with natural justice’ We have since obtained another copy of a letter this time from the Force Solicitor to HML applying for a ‘Case Management Order’ on the grounds I was in ‘breach of the rules of natural justice’ and the force solicitor was applying to the chair of the board to ‘direct me to provide full GP records and if I did not do so the appellant’s appeal should be deemed to be withdrawn’   The Northumbria Force Solicitor concerned is the very same solicitor who had personal involvement in my application for a Judicial Review back in 2008.
In effect this solicitor has approached the PMAB (who we are informed are independent of course) and despite this solicitor being in possession of the written agreement regarding access to my GP records at the termination of the Judicial Review process. Took it upon himself to interfere, influence, and deliberately misrepresent the actual facts. The result being that as far as I am concerned he his actions has prejudiced the entire proceedings before I even get to the hearing.  
At this point I would like to highly commend  Ron Thompson solicitors we have an excellent legal team in place to fight our corner. To give an example I was exchanging emails with Ron at 10pm last night! This situation is evolving day by day and whilst I cannot for obvious reasons provide a running commentary our solicitors are currently involved in providing a robust response.
So in response to the post by Stayalive what can we learn from my own ‘true life and practical’ 9 yr battle with medical records:
1) Despite the inconvenient fact you may have no legal authority to release your full GP records a force may withdraw your entire injury pension until you hand over the records. Causing in my case 3 yrs of financial hardship to the entire family.
2) A force may have no regard to the distress caused to any family member involved in the release of your GP records.
3) A force solicitor may contact the PMAB and interfere and mislead the board before your appeal hearing even starts.
Granted our solicitors describe Northumbria as ‘most extreme and impossible to negotiate with’ one reason why their legal bill for the force is so high! One point I would make is to regard some advice you read with caution dealing with the practical consequences are a completely different ball game…..trust me I’ve spent the past 9 yrs. doing so. I would certainly advise against any misconception that what you may read will protect you when the rabied wolf is clawing at your doorstep. Since the withdrawal of HOC46/2004 forces are on a ‘go it alone’ approach with regard to reviews. You are therefore entirely at the mercy of your local force solicitor (and believe me these guys play a far bigger role in reviews than you may imagine) and of course the SMP. Together (and many do work VERY closely together) you are at the mercy of whatever vivid and creative imagination they can conjure up with regard to the Regs.  With news of more forces starting mass reviews and yet more police budget cuts ahead the writing is on the wall folks…..difficult times indeed lie ahead.
If you disagree with aspects of this post that’s fine, with the daily crap I have to deal with at the moment I’ll manage to live with that. But no arguments online please we must work together for the common good. PM me if you wish.
I’ll close with an apology to Stayalive for being unable to answer your question despite 9 yrs of trying………at least not quite yet!

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Re: medical records

Post by souplesse on Fri Oct 16, 2015 5:57 pm

Wow, defender. I'm just speechless but I'll manage a few words. You've pointed out your plight so clearly and I really feel for you. What totals fekkers - they balked at a full JR as they would clearly lose and then reneged on that and tried again years later.

Devious total sh1tes. With the king rat at his helm - Nicolas Wirz no doubt.

Well done for having the strength to stand up to their bullying. Lets hope Ron Thompson can get justice for you.

Your situation starkly reminds me that even when the law and justice is on your side, it is too easy for evil turds like Northumbria legal services to be the public authority version of rogue traders. If these people worked as plumbers they would be in jail by now.
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Re: medical records

Post by Stayalive on Fri Oct 16, 2015 6:35 pm

Hi
Defender.
No apology due from someone who has in the middle of his own battle taken the time and made the effort to share information.
Thanks and good luck.

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Re: medical records

Post by Defender on Fri Oct 16, 2015 8:57 pm

Thanks Souplesse & Stayalive for your support it's much appreciated, and Souplesse how did you manage to guess the ID of our favorite solicitor!!!!.....your far too good for this forum site chum! On a serious note If you are shocked so far I'm afraid there's more......and quite a lot of it, but it's very sensitive and I'll have to sit on it for the time being, suffice to say I have been asked to attend a meeting with the chair of JBB on Mon as they too are also rather displeased with recent events. I think I will copy my post above to the Northumbria page simply in order that folk who are unfortunate enough to be involved in a review from this illustrious force can access the info easier.

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Re: medical records

Post by RedDog on Sat Oct 17, 2015 9:37 pm

Defender

I am not at all surprised by the horrific treatment you have received. You are not alone and I can assure you that you have much support from many many other IODs who have received equally shameful treatment from people who should be supporting us. I hope you are contacting a solicitor from the ones listed on the PIPIN website. They will make sure that funding comes from the Federation, if it has not come already. There are many constabularies who see fit to harass IODs and not abide by the regulations. As you may have guessed I have received shoddy unlawful treatment from the Met way back in 2000. I had my pension reduced by 50% by the powers that be without them contacting my GP or Consultants or even being examined by the SMP! I was represented by RJW through the FED and had the decision overturned at appeal and my pension reinstated to 100%.
Do not mess about with these people as you are wasting your time. Get one of the solicitors to act for you. They know the regulations inside out and will get your pension restored to the correct level.
Good luck to you in your struggle and I am positive you will get what is rightfully yours.

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Re: medical records

Post by Tallulah on Sun Oct 18, 2015 12:38 pm

Defender, thank you for sharing your horrific story, just grateful you are strong enough to fight these evil entities. How your beloved force solicitor is allowed to continue practicing I do not know. He has been the downfall of many a case and still he continues. Not only that, he actually teaches SMPs throughout the country who believe that what he says is gospel.
As mentioned by Red Dog before, you have the support of many IODs throughout the country, I'm glad you have Ron Thompson on side. He and Mark Lake in London know the Regulations inside out.
We must stay strong and united to fight forces until the light comes on and it suddenly dawns on them that Regulations and case law must be adhered to.

Good luck Defender. The good guys always win in the end.

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Re: medical records

Post by Benjermeeno on Fri Sep 09, 2016 4:34 am

Medical Records. I am new to PIPIN, but not new to the fight that IOD's are having, my own force being the AS. There is nothing that our previous employers can produce in the form of consent, in the very first instance, that they are allowed to retain this historical data for such long periods of time. Certainly, some of the data that they retain, is far too comprehensive, given the restrictions of the DPA. There is certainly nothing in my original terms and conditions that allows them to retain this data, and on this basis, I have withdrawn any consent whether perceived, or written, allowing them to retain my data, or disclose it to a third party. There is a specific part of the DPA, for Employers, where the relationship between the employee, and the employer has ceased, that they should expect such consent to be withdrawn. Unfortunately, I am not in the country at the moment, but, as soon as I get back,I will once again access this info, and post it on here. They could argue, that technically, the relationship, is a continuing one, but hardly as an employee. Bear in mind of course, that an awful lot of us joined before the concept of the DPA.

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Re: medical records

Post by Stoke Bloke on Sun Sep 11, 2016 6:27 pm

Great posts and information.. perhaps the SMPs and HR gurus, should read these and learn and preach.. Mad


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