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Legal Services

Legal Services Department

Requesting health records where a clinical negligence claim is contemplated against the Trust

The Legal Services Department deals with subject access requests that are in connection with a contemplated claim for clinical negligence against the Trust.  Any such requests for health records are dealt in accordance with the Pre-Action Protocol for the Resolution of Clinical Disputes published by the Ministry of Justice and can be viewed at www.justice.gov.uk

It is recommended that requests for health records are made using the Law Society and British Medical Association's consent form that may be adapted as required.  Please click on the embedded Word document below to access the form. 

BMALaw Society form 

Any subject access request where litigation is contemplated should provide details of the care or treatment that may have given rise to an adverse outcome.  This will enable the Legal Services Department to provide the requester with the appropriate records to enable an initial investigation of the matter to be undertaken.  Details of any associated care or treatment provided by the Trust should also be provided if the corresponding records are required, for example where there has been input from community (district) nursing, physiotherapy or adult speech and language therapy.  The above information may also assist the Legal Services Department to determine at an early stage whether the care or treatment provided by the Trust may have resulted in an adverse outcome and therefore constitute a notifiable patient safety incident.  

Claimants Lacking Capacity

In circumstances where the Claimant (the person bringing the claim) is unable to consent to the release of their health records because they lack the capacity to do so within the meaning of the Mental Capacity Act 2005, a subject access request should provide supporting evidence that the person acting on behalf of the Claimant (the Litigation Friend) is the donee under a Lasting Power of Attorney (Property & Finance) or that that they are a Court appointed Deputy. 

Claims on behalf of the estate of a deceased patient

Where a claim is being contemplated on behalf of the estate of a deceased patient, any request for the health records of a deceased person will require documentary evidence that the Claimant is the personal representative and therefore entitled to administer the estate of the deceased person under the law relating to wills and probate.  The request for the deceased person's records in such circumstances should be accompanied by a certified copy of the deceased's Last Will and Testament or Letter of Administration if they died intestate. 

Claims under the Fatal Accidents Act 1976

In instances where the health records of a deceased person are requested in contemplation of a dependency claim against the Trust under the Fatal Accidents Act 1976, sufficient information should be provided to enable the Legal Services Department to establish whether a right of access exists, including details of the circumstances giving rise to the claim, the relationship of the Claimant to the deceased as well as documentary evidence including proof of identity of the Claimant e.g. a certified copy of a passport or driver's license.  Certified copies of birth, death, marriage of adoption certificates may also assist if details of both the deceased and the Claimant are named within the documentation.

Claims on behalf of children

The law does not permit children under the age of 18 ("a minor") to bring a claim in their own right  but a Litigation Friend; usually a parent or close relative, can act on their behalf.  Where a child is being represented by a Litigation Friend any request for health records should be accompanied by a consent form signed by someone with parental responsibility.  Where a child is 16 or over or is deemed 'Gillick competent' within the meaning of the Family Law Reform Act 1969 they may consent to the release of their own health records.  

Where to send your request for health records

Requests for health records where litigation is contemplated against the Trust should be sent to the following address:

Legal Services Department

County Durham & Darlington NHS Foundation Trust

Appleton House

Lanchester Road

Durham

DH1 5XZ  

Alternatively requests can be e-mailed to:

cddft.legalservices@nhs.net

 Fees

There is an administrative charge of £10.00 to assist with the cost of processing the request.  Cheques should be made payable to "County Durham and Darlington NHS Foundation Trust".

 

June 2017

Sorry, no documents found.

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Patient, Labour Ward, Darlington Memorial Hospital