Best Way To Pay Care Home Top-Up?

[Wirralson]

Also my dad's care home said in the contract that physio was included in the price. However, he has been in two months and they still have not employed a physiotherapist and have referred him to the nhs. Surely, if they said at the start they were recruiting someone and still have not done so this is not correct and should give a reduction in the price. He fell on a ward and broke a hip and is now in a wheelchair although he can stand he can't walk properly and is not getting any physio support. I tried to bring this up with the manager and all they could put forward was nhs referee and a complaint that I was copying part of the care plan. So what? Do I work for the news of the world? Red herring.

I am puzzled by the reference to "NHS referee" - I assume this refers to your father having been referred by the GP with whom he is registered while in the care home. If he requires specific physio following a fall, then it is the GP's job to refer him for any physio he needs for that purpose - this would almost certainly be additional to any physio your father may have been due to receive under the terms of any contract prior to the fall.

Care Homes are supposed to keep records (including care plans) secure (from memory, CQC Outcome 21 and Regulation 20 - Records). If you were copying part of the care plan without their permission, they are within their rights to attempt to prevent this as, legally, it is your father's record and, under the Data Protection Act 1998, his sensitive personal data. That Act does permit disclosure of such data for a range of purposes, including defending legal rights - such as rights under a contract. So it may be permissible for you to receive such information to pursue any dispute on your father's behalf in connection with any breach of contract. However, you do need to request such disclosure, and not unilaterally copy it, hence the manager's reaction.

W

 

[birdblack]

I am puzzled by the reference to "NHS referee" - I assume this refers to your father having been referred by the GP with whom he is registered while in the care home. If he requires specific physio following a fall, then it is the GP's job to refer him for any physio he needs for that purpose - this would almost certainly be additional to any physio your father may have been due to receive under the terms of any contract prior to the fall.

Care Homes are supposed to keep records (including care plans) secure (from memory, CQC Outcome 21 and Regulation 20 - Records). If you were copying part of the care plan without their permission, they are within their rights to attempt to prevent this as, legally, it is your father's record and, under the Data Protection Act 1998, his sensitive personal data. That Act does permit disclosure of such data for a range of purposes, including defending legal rights - such as rights under a contract. So it may be permissible for you to receive such information to pursue any dispute on your father's behalf in connection with any breach of contract. However, you do need to request such disclosure, and not unilaterally copy it, hence the manager's reaction.

W

Surely, if you have poa you are entitled to view the care plan, take notes and/or have a copy of any particular section to review in your own time

 

[Wirralson]

birdblack,

Not quite. The key point is you are not entitled, even with PoA or Deputyship, to walk in and unilaterally start copying records of the person in respect of whom you have PoA. The way DPA98 works is essentially to prohibit disclosure unless there is a lawful route to permit disclosure either within the Act itself or elsewhere, and it lays down principles governing the way disclosures must be carried out. If you did so by taking pictures you may also be in breach of the home's rules on photography. Care homes and hospitals routinely prohibit photography without permission for reasons of privacy.

The Data Controller (the care home) must take reasonable steps to ensure disclosures are lawful - letting you walk in and starting copying things would place them in breach of their legal obligation under the Data Protection Principles (DPA98 Sch 1, Part I, Principles 1, 6 & 7 - especially the last which requires that appropriate technical and organisational measures be taken to prevent unauthorised processing of personal data, including disclosure).

The legal "gateway" that permits disclosure in the case of PoA/Deputyship this is DPA98 Sch2 Para 5(b) and Sch 3 Para 7(1)(b) (for the exercise of any powers conferred on any person by or under any enactment). In this case the powers are the PoA or deputyship and the enactment is the Mental Capacity Act 2005. Once they have a letter requesting items in connection with your PoA and proofs of your identity and the PoA, the care home is pretty much obliged to disclose the information that is relevant. The Mental Capacity Act Code of Practice makes clear disclosure should normally be granted in respect of this, but this is subject to the normal requirements for making requests for disclosure.

I'd suggest the best way to get access with PoA is to write saying in effect:

"I am [name], who has Power of Attorney/deputyship for [resident name], and I enclose a copy of the relevant PoA/Deputyship and proof of my identity [The following would suffice Copy of Driving Licence/Copy of Passport +2 x utility bills/statements/official letter such as tax code notice.] As part of my duties I wish to be able to monitor the care [resident name] receives, and I would therefore appreciate if you can forward to me copies of all relevant documentation, including, but not limited to, care plan(s), medical appointments, incident book records...."

You may need to refresh the request periodically - say every 6 months or so. You could also as PoA make a Subject Access Request under DPA98 section 7(3) on behalf of your father, where they must send you all information about your father within a strict time limit.

Hope this helps explain things.

W

 

[LYN T]

After all this legal talk I am so glad that my Husband's CH freely let me read his file at any time. When I was going through the CHC assessment process they said I could take photo copies if I wanted.They work on a trust basis and as they state they have nothing to hide why should they restrict my access? Sometimes mutual trust has to take priority over legalities.

Take care

Lyn T

 

[Saffie]

Me too.

 

[Wirralson]

Lyn T, Saffie,

Whether or not the Care home says it works on a Trust basis doesn't matter - it must still take reasonable steps to protect the data. It is still obliged to comply with DPA98 - if it doesn't it can be given a Civil Monetary Penalty or even a criminal prosecution.

That said, if it knows who you are, and can document (even if only in a minor file note ) that it has permitted you to have access, then it is unlikely to have any problems with the Information Commissioner's Office. This actual legal route to disclosure would be as I describe above for PoA/Deputyship. More generally, there is a provision in DAP98, Sch 2 Para 6(1) which allows disclosure of some data in pursuit of what are called legitimate interests, whcih would cover a a lot of disclosure to relatives, such as the examples you both mention. I mention this in case a care home tries to use DPA98 to prevent disclosure at all - if you know the Act there are ways round a lot of it. Given the limited content of a care plan, allowing informal access is not inconsistent with Principle 7.

However, if you are not providing physical care, and not actually a party to the contract for care, and not a PoA holder or Deputy, then there are certain things you don't have a right to see. Being a spouse or relative doesn't automatically confer that right. They also have to take account of any wshes expressed by the patient either in advance or while ill. (I've expressly forbidden disclosure of my health records to any of my relatives, for example.)

The points I was making to birdblack were:

First, that there was and is no automatic entitlement to make such copies.​

Second, how to ensure that the information required to carry out PoA duties is available if a care home declines to provide it. In effect the entitlement to the information is conditional, but should be made available if an appropriate request is made.​

That's all.

W

 

[Saffie]

I don't have LPA for my husband at all and only Deputyship for Legal and financial.
I am, however, next-of-kin. I have never had a problem reading my husband's Care plan and indeed contributed to it and have been told that if I see something that needs amending in it, I should do so.
Why should there be a problem for someone with LPA accessing this plan?
I thought they are supposed to be acting in place of that person.

 

[LYN T]

Crikey thank goodness common sense prevails in Pete's CH. If I had to listen to a load of regulations and talk of DPA sections and DAP sections this and that I think my eyes would glaze over

I don't even know if they realise that I have LPA (financial) As I'm not going to report them to the PC Police I guess it doesn't matter

Poor you Birdblack. Life is hard enough without the red tape

Take care

Lyn T

 

[Wirralson]

I don't have LPA for my husband at all and only Deputyship for Legal and financial.
I am, however, next-of-kin. I have never had a problem reading my husband's Care plan and indeed contributed to it and have been told that if I see something that needs amending in it, I should do so.
Why should there be a problem for someone with LPA accessing this plan?
I thought they are supposed to be acting in place of that person.

Saffie,

There isn't a "problem" as you put it. The point is that there is no automatic right to see anything, and a duty on the care home to observe DPA98 Principle 7. That's all. As you have described events, it's doing that. My only reason for posting was to provide ammunition, if you will, for those who needed to seek information. Incidentally the term next-of-kin has no legal validity at all in this context (or, indeed, most others).

W

 

[Wirralson]

Crikey thank goodness common sense prevails in Pete's CH. If I had to listen to a load of regulations and talk of DPA sections and DAP sections this and that I think my eyes would glaze over

I don't even know if they realise that I have LPA (financial) As I'm not going to report them to the PC Police I guess it doesn't matter

Poor you Birdblack. Life is hard enough without the red tape

Take care

Lyn T

Lyn T

You don't and shouldn't have to become involved in DPA98 in the ordinary course of events. The care home does, and it does matter to them to an extent. If inspected by CQC and they fail Reg 20/Outcome 21 or get an ICO complaint, they will need to be able to demonstrate they have appropriate data protection in place. If they get it wrong they can be "fined". That's their problem, not yours. Whether or not you have LPA (Financial and Property) doesn't actually matter all that much from that perspective.

If you or others do find them declining to provide information, it's simple enough to deal with, hence the post and outline letter. For me the other side of it is the day job, though not in a care home, and I've had to deal - successfully - with it as a relative as well when an organisation declined to disclose information and made the mistake of citing DPA98 to me. As you may gather, they lost that argument!

W

 

[jenniferpa]

Pardon my ignorance if I'm wrong, but as far as I am aware, to have POA means you can do ANYTHING that the donor could do if they had capacity, and surely that includes FULL access to medical/care records that are held about them. ANYTHING being the operative word here.

A lot depends on the type of POA. If it's an LPA for health and welfare then yes, you have the right to see medical/care records that you could see if you were the person in question. If it's an LPA for financial matters then you can see and deal with most financial matters (I say most because sometimes you have to apply to the court to deal with large financial issues such as selling a house). However, an LPA financial doesn't give you the right to see medical/care records just as an LPA welfare doesn't give you the right to deal with financial matters. To add to the confusion, some people may well have the old style EPA which is really just for finances, or a Deputyship which again, is normally for finances (although a few people also have Deputyship for welfare).

So it all comes down to which specific instrument you are using.

 

[Noorza]

I have the old style EPA so no rights to medical records. We are doing alright though as I've been mum's carer for 20 years she's given them permission to talk to me. It is on her GP's and hospital notes. So yes Jennifer is spot on.

 

[LYN T]

Pardon my ignorance if I'm wrong, but as far as I am aware, to have POA means you can do ANYTHING that the donor could do if they had capacity, and surely that includes FULL access to medical/care records that are held about them. ANYTHING being the operative word here.

I'm a tad bit confused as well PIPH

Pete's GP phoned me about DNAR as I was his next of kin and I made the decision to have DNAR put on his file. (this was necessary as the MHU had not passed on my decision). Surely this decision holds more weight and gravitas than looking at a few pieces of paperYet again neither parties asked if I had LPA (I only have finance not welfare) Next of kin was good enough.

I have also asked the relevant body to show me my Husband's medical records for the last eight years. I will take along my LPA and photo of me and Pete on our wedding day
but I haven't been asked to provide any evidence yet.

Take care

Lyn T

 

[Noorza]

Then you've got the whole nearest relative v next of kin. There will be fun and games if that one is needed as my sister in nearest relative, I have been next of kin for decades.

I don't live with Mum but have been her carer for twenty years too in ever increasing levels.

How would that would go if their was a DNR decision to make? Would my sister get to make the decision as she's nearest relative due to age.

http://www.mind.org.uk/information-...earest-relatives-under-the-mental-health-act/

 

[jenniferpa]

I can't access the mind link (my internet has been very confused all day) but if it's the one I'm thinking of, "nearest relative" has a very specific meaning when it comes to situations related to sectioning etc under the mental health act. For example, I would not have been considered my mother's next of kin (although obviously I was) because I live outside the UK. In another situation an unrelated carer might be considered the next of kin if they are the person who has the most to do with that person.

As has already been said, next of kin really doesn't mean much in a legal sense. As for a DNR, these things should only be issued after consultation with the family anyway.

Edit to add: the link finally came up for me, and yes this only relates to the Mental Health Act and would have no bearing on something like a DNR

 

[Saffie]

I authorised my husband's DNR even though I didn't have Deputyship.
In fact, I was asked to do it only 2 weeks after his amputation when I would have thought he could have done it himself.
I refused at that time as I was upset as he had just been resuscitated on the ward. Well, I didn't actually refuse, I just burst into tears so I think the consultant decided to take it no further!
So I don't think you need to have LPA for that. NOK more likely.

 

[Wirralson]

Jenniferpa

"Nearest relative" is defined in s26 of Mental Health Act 1983 (MHA83). It mainly applies to the right to be informed/object to sectioning under ss2 & 3 Guardianship under s7, and the right to make applications under s4. Functions of nearest relatives are defined in s11.

NoK is a persistent concept, but its origins in the UK are (I think) military rather than medical - it was (and is) the term used to define the person whom servicemen and women wish informed in the event of death/injury/capture and has passed into general use.

It's important not to confuse the rights and duties of PoA/Deputies with the procedures imposed by DPA98. A PoA/Deputy can make a subject access request under that Act as if they were data subject (the person to whom the data relates), but the data controller (whoever holds the data) must follow the Act in satisfying themselves that release/disclosure is lawful.


LynT,

What you are asking for sounds like a Subject Access Request on behalf of your husband. The requirement in your case will be that you are able to prove that you are who you say you are and hold PoA - so taking that along plus proof of identity should be more than sufficient (Driving Licence/Passport).Strictly a SAR should be in writing and the NHS may ask you to fill in a form But some or all may also be lawfully withheld. It sounds as though you may already have done the initial application. Records, if extensive, are normally not copied (it is costly and can take considerable time), but the requestor can view the record in person and ask for copies of selected elements.

I wish you success in your request, but what you are actually given may depend a little on what you ask for and why. Medical ethics, the common law duty of confidence and DPA98 do mean that such requests can sometimes be declined or the information may be restricted or redacted. As you hold finance and property LPA (do you also hold health and welfare?) they may give you some or all of the information, especially if you are exercising or defending legal rights on behalf of your husband.

NHS Guidance on accessing health records of someone else is here:

http://www.nhs.uk/chq/Pages/access-to-someone-elses-medical-or-health-records.aspx

Note that while it is (as jenniferpa says) much more likely that someone holding health and welfare PoA will be able to see such records, it isn't an absolute certainty that they will get to see all of the records. It is case by case, I'm afraid

piph

The short answer is No, but.... Yes but.... The common-law duty of confidence, medical ethics and DPA98 and the Mental Capacity Act 2005 may restrict what can be passed even to a PoA/Deputy holder, and then information may only be disclosed to the extent that is necessary. It may vary between health and welfare and finance and property attorneys. See also "Caldicott principles". As noted, health and welfare attorneys are much more likely to be able to obtain most or all of the records than someone without such powers. But they have to be requested formally (this is known as a Subject Access Request) in exactly the same way as the person concerned would have had to do.

A deputy/Attorney can DO many things that the donor could do, subject to any restrictions in the instrument granting the PoA and the general law. (In fact, you can't actually do absolutely anything - you must, for example, act in the donor's best interests.) So you can make a Subject Access Request (SAR) for health records but you may not necessarily get access to all of the medical records. (You probably will, but it isn't an absolute certainty in every case) You may also get access it is required for the exercise of your functions as attorney or to exercise legal rights (for example, pursuing a case for negligent treatment), but then only to the extent that is necessary. As noted, health and welfare attorneys are much more likely to be able to get all or most of the information, but finance and property ones may find some of the information is restricted. I'd expect the outcome of a SAR to be pretty much successful in most cases. And a solicitor acting on behalf of the person whose records are being sought can also make a SAR.

It also isn't the case that someone without such power will get no health records - but it may be limited. For example a carer may be told an outline of diagnosis, medication, and signs to watch for to enable them to carry on being a carer at the patient's home. But they wouldn't get details (for example) of unrelated ailments from the person's past.


Guidance is available here:

http://www.nhs.uk/chq/Pages/access-to-someone-elses-medical-or-health-records.aspx

http://www.medicalprotection.org/uk/england-factsheets/access-to-health-records

The NHS Code of Practice on Confidentiality (now rather dated) is here:

https://www.gov.uk/government/uploa...46/Confidentiality_-_NHS_Code_of_Practice.pdf

On the sale of the bungalow, you may need specialist advice, but try the Office of the Public Guardian first.


W

 

[Saffie]

It also isn't the case that someone without such power will get no health records - but it may be limited. For example a carer may be told an outline of diagnosis, medication, and signs to watch for to enable them to carry on being a carer at the patient's home. But they wouldn't get details (for example) of unrelated ailments from the person's past.

As I've said, I only hold Deputyship for Legal and Financial Affairs -it is rarely given as a blanket cover for Health and Welfare.

However, I was able to access all my husband's hospital notes and was able to photocopy any I chose. It would have been possible to get a copy of the lot but it would have proved more expensive and I really only needed those which would be relevant to his state of health at present. There were 3 massive files.
Naturally, I had to ask permission and send a copy of my Deputyship authority.

The same applied to the GP's notes, though these were copied and sent rather than my accessing them personally.Here the GP had said that without H&W LPA, I wouldn't be able to have them but I wrote to the Pracice Manager and had no problem at all.

It all seems a bit hit and miss!

 

[Wirralson]

Saffie

If your request was treated as a Subject Access Request as it should have been then that is pretty much what I'd expect to happen in almost all cases. I'm glad you received a prompt answer. I wouldn't normally expect a hospital to allow you to copy notes yourself, but rather to do it for you. That's nothing to do with DPA98 but to do with maintaining health records. The practice manager is usually responsible in a GP practice for what is called Information Governance, including answering SARs. S/he should have consulted the relevant clinician (GP) and reached an appropriate conclusion - clearly they did. Nice to see it working more or less as it should.

W

 

[LYN T]

Sorry, but it's all well over my head! Lets just hope that none of it ever needs to be that complicated for me and my mum. I'll cross those bridges when I come to them - too many other, more pressing worries to think about!

Very much how I feel PIPH.

Obviously the people whom I have dealt with so far are into common sense and being helpful.

Take care

Lyn T