If you are retrospectively reclaiming care home fees that were incorrectly charged, then you will need to gain access to your relative’s care home records in order to properly assess their eligibility for NHS Continuing Healthcare Funding. This can often be problematic!
Some care homes are not keen to release original records for obvious reasons.
Others do not see a request to release copy notes as a priority as it is a time-consuming, low priority administrative burden. However, getting hold of these records is a priority for you.
A ‘health record’ – contains information about an individual’s physical or mental health, that has been created by or on behalf of a ‘health professional’ in connection with an individual’s care – as set out in the Access to Health Records 1990.
Examples of a health professional include: a registered medical practitioner (eg GP), dentist, optician, registered nurse, psychologist, occupational therapist, physiotherapist, and more…
Most care homes will insist on a written request before they release any medical and care home records.
If you have appointed a Solicitor, then they can write on your behalf and attach your signed form of authority.
If you have Power of Attorney, then as your relative’s Attorney, you can write directly to the Care Home to request release of the records. It’s a good idea to enclose a photocopy of your Power of Attorney as proof of your authority to act.
Similarly, if you are acting on behalf of a deceased individual, it is usual to attach a copy of the Grant of Probate as proof of your authority to act.
Question 1: How long do care homes have to comply with the request?
Answer: Pursuant to the Access to Health Records Act 1990, care homes are obliged to comply with the request for copies of health records they hold within 40 calendar days.
Question 2: What happens if the care home doesn’t comply with the time limit?
Answer: You should insist that they provide the records, failing which you will report them to the Information Commissioner’s Officer (ICO) for breach of the Act.
Question 3: What happens if the care home has gone into administration or liquidation?
Answer: You may have great difficulty getting hold of the care home records and may have to make extensive enquiries through the appointed administrators to see if they know where they are being stored, and whether they are still accessible.
Question 4: What happens if the care home has closed?
Answer: Again, you face the same difficulties, but an even bigger challenge, as you will need to trace what happened to the records upon closure. Were the records just left at the home, archived off site; or worse, destroyed? You may have great difficulties tracing someone who can shed some light on the situation. The next task is finding someone in authority who can still get access to the care records, and also has permission to release them to you.
Question 5: What happens if the care home has been sold on, or not all your relative’s records were transferred to their new care home?
Answer: Hopefully, all the records were transferred to the new owners, and you can approach them for copies of the records instead.
However, if some or all of your relative’s care records were not transferred, then that of course can be problematical too, especially if the previous care home has gone bust or closed down, and/or the owners do not recall where the records were kept or archived. See above.
We suggest that you write to both the new owners and the previous owners, and ask them to conduct a thorough search for the missing records, and to provide the names of the Data Controllers. If they do not co-operate, check with the Information Commissioner’s Office to see if you can track down the Data Controllers for both care homes. Then write to the care homes, requesting that they liaise directly with each other to sort the issue out between them to avoid the matter being formally reported to the Information Commissioner’s Office. That should get some results!
Question 6: Surely the records would have been transferred to the new owners?
Answer: Not necessarily. If a resident died a long time ago, the records may have been archived or destroyed. The new owners may not want to take over storage of any old records from residents who have long passed away.
Question 7: How essential is it to ‘bust a gut ‘ to get hold of my relative’s care home records for a retrospective reclaim of care home fees?
Answer: If you are making a claim for a retrospective review, then it is absolutely essential to have access to as much information and records as you can. The previous records will paint a picture of your relative’s care needs over a period of time. You need to know at what point (if any) their healthcare needs changed and if they may have qualified for NHS Continuing Healthcare Funding. You cannot possibly make a fully considered claim without first seeing all contemporaneous written care home and medical records, care plans and various risk assessments relating to your relative’s care. Obtaining and analysing these records carefully is paramount to success.
Question 8: What remedies do I have if the care home still exists and they refuse to provide the records?
Answer: If the care home refuses to release records (unreasonably) within the 40 day timescale, then you should write to them requesting their reasons for withholding information, so that you can report the matter to the Information Commissioner’s Office as a breach of the Act, and to seek ICO guidance on the matter.
If you have struggled to get hold of your relative’s records for any reason, share your experiences with others, and tell us, if and how, you got round the issue…
