URGENT: Subject Access Request to NHS on behalf of person

[Justme2021]

I sent a Subject Access Request to PALS on 10/04/2023 (to proceed to Ombudsmen), after a complaint was fobbed off, delayed by 4 months, in turn delaying vital treatment for my son (now turned 18 with a mental disability-ASD).

Then received acknowledgment from Health Records Administrator of IM&T Dept of Oxford Health NHS Trust.

It has been a back and forth since then, when clearly requested information (which I was specific with) is required within 30 days.

On 14/04/23 Sent ID and Legal Appointee letter (from DWP) to confirm I handle matters on behalf of son.

Received email 17/04/23 from administrator whom said " We do need consent from **** if he has capacity to do so." My prompt reply was that legal appointee letter was sent, if he had capacity I would not be provided authority as appointee.

Despite this, yet another email from Health Records Manager, received today, 30/04/23 wasting more time stating, "...However, in regard to Health Records, when a Health Care Professional has confirmed that the Data Subject (my son) has capacity to consent to this information being released to another party, we do require either his written consent or a copy of the Lasting Power of Attorney for his Welfare decisions. The Lasting Power of Attorney would have to state that it can be used prior to the Person losing capacity as he is deemed to have capacity to consent. "

Where do I go from here??? they now have until 10/05/23 to produce requested information and I am fed up of dealing with them.

Please help, thank you.

[Manxman]

I'm a retired NHS manager but I'm afraid I don't know the answer to your question.

However, I'll try to give you some pointers:

1. I don't know what a Legal Appointee letter from the DWP is and I don't know if it is sufficient to authorise a third party to make a SAR on behalf of someone else. The Data Controller at Oxford Health NHS Trust might not know either

2. The Data Controller might be asking for evidence of a Lasting Power of Attorney either because (a) that is the only document that permits a third party to make a SAR on someone else's behalf, or (b) they've never heard of a Legal Appointee letter and don't know that it is sufficient

3. Sorry to ask but the reply from the trust implies that healthcare professionals believe that your son currently has the capacity to make a SAR himself. Are they mistaken?

4. Can you speak to the data controller on the 'phone to try to resolve this? Or would that pose its own problems?

5. Is it the ICO who deals with SAR complaints? Have you tried asking for their advice? They have a 'phone line: Advice services for members of the public | ICO

[des8]

Legal appointee letter: https://www.gov.uk/become-appointee-...iming-benefits

[Manxman]

So that specifically allows a third party to manage somebody else's benefits, but doesn't say anything about it authorising a third party to make a SAR on somebody else's behalf?

A quick google search and the NHS Digital website suggests that the OP would need "legal authority" to do so (and they give a power of attorney as an example) or "another legal basis for access".

Can I access someone else's medical records (health records)? - NHS (www.nhs.uk)

I'm aware the website is not a definitive statement of the law but given what it says I wouldn't be surprised if either (a) a Legal appointee letter is insufficient to raise a SAR, or (b) if it is sufficient, the trusts data controller doesn't know that.

As I suggested earlier, if I were the OP I'd 'phone the trust and/or contact the ICO on their advice line and try to bottom this out.

Or wait until the trust is in breach (or the OP thinks they're in breach) and complain to the ICO.

(But if it were me I think I'd want to try to sort this out before it reached that stage.)

[Justme2021]

Thank you for your prompt reply.

My son recently turned 18, therefore not had opportunity to provide GP surgery confirmation of being an Appointee (manage his affairs/benefit).

I assume this is why he is suddenly considered having capacity?

Suggestion of Lasting Power of Attorney is ludicrous at this point, since that can take 10 weeks, SAR should be provided by 10/05/23.

I sent an email yesterday, attached a consent form using a template and added son's signature to save time.

Maybe I should apply for a Lasting Power of Attorney for future issues? Apparently costs Ł41 if person on low income (below 12k) else Ł82. He receives PIP but that is not a passport to an exemption of fees? Would that not be considered as lower income though so then need to pay Ł41?

Thank you

[Justme2021]

Manxman I appreciate your explanation. Apologies for my ignorance but what does OP mean?

[Manxman]

OP is shorthand for describing either the person (you) who makes the first (original) post in a thread, or the first post itself.

I'm afraid I can't provide any further advice than I already have on this particular thread, or on the broader question of whether you should apply for a POA or not.

(However, in cases where a POA is either desirable or necessary, I'd have thought it better to apply sooner rather than later. But the Catch 22 in your case is that if your son already lacks capacity to make a SAR, then he also lacks the capacity to grant a POA. If nobody else here can give you helpful advice you might have to consult a lawyer or perhaps CAB. Some firms of solicitors will offer to give 30 minutes of free advice. Ask around).

[Manxman]

Justme2021 - Sorry - don't want to pry, but is there any particular reason why the trust would believe your son has capacity while you think he doesn't?

I don't wish to be unkind, but I used to work in a mental health trust (not a learning disability I know) but I would have expected a NHS trust to have a better insight to your son's capacity than you would.

Again - sorry for asking and no offence intended.

[Justme2021]

Manxman Really appreciate your responses. It has never come into question about capacity until now. I have always managed everything for him, communicating with all professionals on his behalf. I've been passed from pillar to post, most senior staff don't know their right from left hand let alone checking my son's actual records to confirm his conditions.

I doubt they know better, roadblock purely due to him turning 18, never had issues before, he had an EHCP in place, numerous professionals involved for years.

CAMHS fobbed off, only when I explained issues and conditions, how affects him, did they even bother to reconsider adding him on a waiting list for group sessions (useless and not age appropriate).

Had to go through a Tribunal in order for specific treatment sessions to be implemented for one of his diagnosed conditions. Referral was sent by same CAMHS Dr against his treatment to different hospital outside their jurisdiction (that had specialist dept), she created a discrepancy, referral was declined in May 2022. She told myself to contact hospital (South London and Maudsley) to sort her mess out. I did so June 2022, whereby Dr in London said referral needs to be resent and treatment can begin. Unfortunately, CAMHS Dr refused to do so, passed buck onto a different team for yet another assessment when son is already diagnosed.

PALS fobbed off after complaint taking 4 months to respond, hence why I need information to take matters further and hold them accountable for our mistreatment, being sent on a merry go round.

So here I am, without treatment for my son-hit 18, and now need to go via Adult services to be referred for treatment sessions he desparately needs, and should have received a year ago.

[Manxman]

Ah. Very sorry to hear of your son's and your troubles.

As I said, I was a manager in a NHS mental health trust. I'm sorry to say that your story is probably all too common across the country, especially around the transition from CAMHS to Adult services. Sometimes the transition is for the better, more often for the worse.

I'm afraid I can't really offer you any more assistance as you are straying outside my knowledge comfort zone.

Have you tried looking for any action groups or internet groups that might be able to offer you advice and support? I'm ashamed to say that there is one in my area that basically campaigns against the trust I used to work for because its services are currently so dreadful. (It used to be a good trust when I worked for it - honest! It's decline was unconnescted to my departure though).

I'm not surprised by your experience with PALS. Most trusts try to divert compalints through PALS these days. A complete waste of time.

If I had a serious complaint against a trust I'd go straight to the Trust Secretary (or equivalent) with copies to Chief Exec, Medical Director and Chair of the Board. But probably get nowhere.

I wish you good luck.

[Manxman]

NB - After I wrote the stuff below I found this page about how to make a formal complaint. If you haven't already done so, Dr Nick Broughton seems to be the man you want. If I were you I'd copy in the Chair, David Walker, too.

Making a Formal Complaint - Oxford Health NHS Foundation Trust

================================================== ==================


This trust? Board of Directors - Oxford Health NHS Foundation Trust

Trust Secretary - Kerry Rogers

Chief Exec - Dr Nick Broughton

Chief Medical officer - Dr Karl Marlowe

Executive Managing Director for Mental Health, Learning Disabilities and Autism - Grant Macdonald

Chair - David Walker

If you complain to any of these people keep your complaint direct and to the point, and free of unnecessary emotion, but by all means emphasise to them the stress and detrimental effects that their handling of your son's treatment has had on both him and you. Explain you've already been down the PALS route and that was wholly unsatisfactory.

Hope this helps you a bit if you don't already know how to proceed further.

[Justme2021]

Thank you so very much for your understanding and going the extra mile to assist.

I only explained details in order for you to ascertain context and reasons why I am in the current unfortunate position that I am.

Constant battle for fulfilment of needs with those that require it due to diagnosed lifelong conditions.

It is ashame and ironic that those employed within such remits in relation to mental health, in nhs seem to be oblivious and lack knowledge/understanding of mental/physical conditions that affect people.

I shall certainly use information you have provided and contact Dr Nick Broughton promptly. It is such a maze, so grateful for your direction.

[Manxman]

No trouble.

As I said, try to keep your complaint relevant and to the point, and try to keep emotion out of it. Mention you've been through PALS without reaching what you consider a satisfactory resolution.

If you have several different complaints, try to itemised them separately.

From your explanation it sounds as if part of your complaint is that your son was referred to another specialist healthcare provider but that a clinician at Oxford Trust interfered in some way with that referral? (Sorry if I've got that wrong). I'd just say that when complaining to the trust make it clear what they've done that you're complaining about and try not to mix it up with other NHS providers.

OK?

Good luck

[Justme2021]

No trouble.

As I said, try to keep your complaint relevant and to the point, and try to keep emotion out of it. Mention you've been through PALS without reaching what you consider a satisfactory resolution.

If you have several different complaints, try to itemised them separately.

From your explanation it sounds as if part of your complaint is that your son was referred to another specialist healthcare provider but that a clinician at Oxford Trust interfered in some way with that referral? (Sorry if I've got that wrong). I'd just say that when complaining to the trust make it clear what they've done that you're complaining about and try not to mix it up with other NHS providers.

OK?

Good luck

Understood, yes you are absolutely correct. Clinician at Oxford Trust sabotaged and interfered with the referral, refusing to send an amended referral to London hospital, which had a very minor discrepancy about weight being lost over 2 years not 1 month (as on initial referral form). She passed the buck onto a different team for a new assessment to be undertaken which was not specialist in the condition my son was already diagnosed with.

I shall definitely keep it succinct and on point, my son has been deprived of treatment sessions due to negligence, which was all that I was seeking. This will be the only argument, as funding had already been provided for treatment to proceed.

Thank you so much.

[Justme2021]

Received the following reply today via email which is more passing us along rather than resolve, I am lost. This is now going to end up being a longwinded process of complaining via social ombudsmen I believe?


Thank you for your email. I am very sorry that you are unhappy with the treatment provided by Oxford Health to your son and in the way your complaint regarding this has been handled.

In light of this I would reiterate the advice set out in Claire’s email of 22nd February both in relation to contacting the PHSO and for your son to be seen by our CAMHS eating disorder service.

Yours sincerely,
Nick

Dr Nick Broughton
Chief Executive