15 February 2006

Benefits and Work has discovered that doctors carrying out Disability Living Allowance (DLA ) examinations have been instructed to issue oral warnings to claimants, or anyone else present, who appears to be taking notes during an examination. The warning, which claims that there are legal reasons why what happens at the medical should not be publicised, is both intimidatory and legally untrue. The practice has been approved by the Department for Work and Pensions, but the General Medical Council is to investigate the matter and has urged doctors to consult with the Medical Defence Union if they are asked to issue such warnings.

DLA medicals are frequently the subject of deep disagreement between the DWP and claimants. Often claimants will allege that the doctor was rude, abrupt, asked them to sign a statement without giving them a chance to read it, spent a lot less time with them than is claimed in the record, asked leading questions or wrote down things which the claimant never said.

As a result, Benefits and Work has been encouraging claimants who have a DLA medical to keep a written and, if possible witnessed, record of what took place. Our guides to claiming DLA include a Medical Visit Record Sheet which allows the claimant to record vital information about the medical as it happens. Because this is signed contemporaneous evidence, it is much more effective at an appeal hearing than simply trying to remember what happened months after the event. We know from claimants who have used them that the Medical Visit Record Sheet has been well received at hearings.

Clearly they have been sufficiently effective that steps are being taken to make people taking notes feel deeply uncomfortable.

Oral warning
The latest edition of Decision Makers Exchange, a monthly newsletter which goes out to all DLA and AA decision makers and was obtained by Benefits and Working using the Freedom of Information Act, announces the new oral warning system. In what appears to be an extract from new guidance issued to Examining Medical Practitioners (EMPs), although the source is not revealed, the newsletter explains that customers are entitled to take notes during an examination but goes on to say that:

Where the customer or other person present makes such notes, the EMP should record in the report that notes were taken and should also give the following oral warning:

"If you wish to take notes you may do so, however, I must point out this is for your own use and benefit. They will not be included in any report save for the fact that notes were taken and they are not accepted as an official record of this examination. If the notes are subsequently produced at any time for any purpose, such as part of appeal process, I [the examining doctor], my employers and the Department for Work and Pensions reserve all rights to challenge anything that may be recorded in your notes. Also, you should not seek to publicise them as certain matters are subject to data protection and confidentiality."

The extract goes on to state that:

"The EMP will also record on the front page of the report the fact that this warning has been given."

Almost everything about this warning is spurious.

The doctor has no power to give, much less withhold, permission to take notes.

It seems extraordinarily unlikely that any claimant believes that their notes will form the sole "official record" of the examination, but they are every bit as legally valid as the doctors record of what happened and may well be preferred by an appeal tribunal as the more accurate. In addition, the claimant has every right to send a copy of their notes to the decision maker and insist that they are taken into account when the decision about their DLA is made. They will then be a part of the "official record" held by the DWP.

Neither the examining doctor, nor their employers - a company called Nestor who work as sub-contractors providing medical staff for Atos Origin - nor Atos Origin itself, have any legal "rights to challenge anything" that is produced as evidence at an appeal hearing. A DLA appeal is between the claimant and the Secretary of State for Work and Pensions. If the DWP, or the appeal panel, wishes to seek additional evidence from the examining doctor they can do so. But neither the doctor, nor Nestor, nor Atos are parties to the appeal and so they do not have any legal rights whatsoever in the matter of challenging evidence.

The biggest untruth is saved until last, however. Data protection and confidentiality rules do apply to the medical - but only to the doctor, Nestor, Atos and the DWP. Claimants are not covered by the Data Protection Act and have no duty of confidentiality towards anyone. A claimant is free to publicise their notes in any way that they wish. They can pass them on to journalists, publish them in discussion forums or in web logs or do anything else they choose. The ordinary laws of libel apply, so we would advise against identifying the doctor by name or in any other way as a sensible precaution, but that aside a claimant can do what they wish with their notes.

False warnings
We don't know for certain whose work this warning is, though we have very strong suspicions. If it is the work of Atos Origin it would not be the first time they have issued false legal warnings. In the past they have claimed ownership of the multimillion pound LiMA software and over 100 different medical guides and training packs, publishing legal warnings about their confidentiality on each of them. The DWP supported Atos' claims and only when Benefits and Work proved that they were false were Atos forced to withdraw them.

But whoever created it, there is no question in our minds that both the DWP and Atos are guilty, at best, of gross negligence in allowing such a widely drawn and misleading warning to be issued by examining doctors. Some might go further and see it as a cynical attempt to slap down and disempower claimants who have the temerity to try to ensure fair treatment. The effect on some sick and disabled claimants of such a legalistic warning, read aloud by a doctor as if they were a policeman reading a caution, can easily be imagined.

The fact that the claimant will then have to sign the front sheet of the medical report to say that they have had the warning read to them will only add to its intimidatory power. It's reasonable to assume that some people will cease taking notes then and there whilst others may take notes but feel uncertain and afraid about what use they can afterwards put them to.

Benefits and Work is doing what it can to put an end to this unjust practice. We have spoken to the General Medical Council who have now asked us to provide them with written evidence in order that the matter can be investigated by the Fitness to Practice Committee. They will also be investigating why it is considered necessary for such a statement to be read and what checks were made to ensure that the statement was legally accurate. They have stated that doctors asked to issue such a warning should consult the Medical Defence Union before doing so.

In addition, Benefits and work is seeking to have questions put to the Secretary of State for Work and Pensions.

In the Members area there is now a statement of rebuttal which claimants can, if they wish, hand to a doctor who gives them an oral warning. For organisational members only, there is a similar statement from your agency which can be issued to clients prior to a medical.

The statement sets out why the oral warning is incorrect, what steps the doctor should take before issuing such a warning in future, requests an apology and reserves the right to take further action. Clearly such a rebuttal may not improve the atmosphere at the medical and claimants will need to think carefully about whether they wish to make use of it. It may, however, discourage doctors from issuing similar statements in future.


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