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.
Some FAQs:
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…
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Hello all, I have requested access to my relatives electronic care home records / daily updates, as I am concerned about her care or rather the lack of it. What should I include in the reasons I am asking, that will give me a better chance of success. I feel like saying they are all lazy and I don’t believe a word they tell me but obviously that won’t help ! Thank you
I think all we can do for any of the deceased is FIGHT and keep FIGHTING they deserve some dignity in death and if we give up fighting then THEY Win. I know every story is different but the death of loved ones is what is important and that they get JUSTICE for how they where treated xxx good luck to all of you xxx
The care home where my partner was is extremely corrupt and nasty.
This lady was found unconscious in her bedroom on the floor
They are now refusing to send her records even thoughbI am the executor.
The council and police are in league with each other .
This lady passed away all alone without any friend or relative we didn’t see or speak to her for over a year .
This was done by the council as they are afraid of being sued .
They didn’t want me ti see my partner so we didn’t get together and make complaints.
Can we not do something about this together.
The lady died with covid and the hospital where she passed away is refusing to send her records as well .
All of them make sick They are so corrupt
As an excecutor I have been requesting all record from a care home pertaining to the deceased. First I was told the social worker had removed them and gave them to the police I proved this untrue, then they said they never sent that email so i returned their email to them. Then they told me to sort it out with the next of kin call her X I then told them that HIPC rule 11 says that the next of kin has no legal rights once the person is deceased. The care home has gone very quiet.
At the beginning of this I contacted the care ombudsman but it went nowhere.
Any idea other than hire yet another solicitor because X is doing things she should not be allowed to over the excecutor. 😒
Does the law Access to Health Records 1990 apply equal to care agencies providing care at home?
We had problem with poor care for 100 year old mum. The Care industry is a digrace . so is the CQC and many Councils . All working together to block any.complaints and.cover their .backs. Where is the Government Minister responsible . Who is he/ she ?
I’ve had same problem they are a disgrace covering up for each other blocking complaints.
Our relative died in horrific circumstances due to care home and council abuse.
They’re refusing to send the records even though entitled ad am executor.
If you can help be grateful
Can next of kin view a residents care plan if they do not hold POA for health and welfare? If not, how do I tell whether if it is an accurate reflection of my relative’s needs? Home has refused to share citing data protection, despite the fact that the information used to write the plan was given by me during an interview with the manager. Relative has Alzheimers.
Is the person still alive because if the care home has accepted the next of kin then you may have to hire a solicitor. I’m having a problem with a next of kin also.
I have requested my grandads documents held by a care home he went in to hospital on Monday and we have raised concerns about the care and hows his been neglected so we spoke to social worker as well as hospital has raised issues with social worker, I have emailed the care home he was in and asked for all documents for the last 3 weeks of all care given and any calls that may of been made to doctors or 111. The home has emailed me back and said now it’s a safeguard issue and being investigated for me to ask the social worker as she will be forwarding them on to them am I still in my right to ask the care home for these?
My father is in the advanced stages of dementia and following safeguarding activities culminating in a critical incident he was moved from self-funded residential care to nursing care in June this year. it was decided by safeguarding that he needed 121 24/7 supervision in the interim period as we urgently arranged for his transfer to appropriate male-only nursing accommodation (again mandated by safeguarding). We are now embarking upon the CHC process for funding on the basis that my father has clearly transitioned from social to health care needs. I believe this will have to be applied retrospectively to the date of the critical incident as the demands of his interim 12 24/7 supervision are clearly beyond social care criteria. The cost of that and the uplift in nursing care costs put him £12.5k out of pocket to date and are added to at the rate of over £6k per month as he pays for his own HEALTH care. I believe we have a strong case, but from what I read am very nervous about the whole process and am considering instructing a solicitor to manage things (£20k). Even so, I have been denied access to care home records as I do not have Power of Attorney over Health & Care, just Property & Financial Affairs. Is this really a bar to accessing records that have a direct impact on my being able to assert correct process towards funding, which is surely a financial affair?
Rob – you should be able to obtain records by applying for a Subject Access Request to then send to your Hospital Trust without having Power Of Attorney – just need proof of who you are in relation to your father?
Tracy Mcfaydensays:
June 16, 2022 at 7:20 pm
As an excecutor I have been requesting all record from a care home pertaining to the deceased. First I was told the social worker had removed them and gave them to the police I proved this untrue, then they said they never sent that email so i returned their email to them. Then they told me to sort it out with the next of kin call her X I then told them that HIPC rule 11 says that the next of kin has no legal rights once the person is deceased. The care home has gone very quiet.
At the beginning of this I contacted the care ombudsman but it went nowhere.
Any idea other than hire yet another solicitor because the next of kin is doing things she should not be allowed to over the excecutor. The next of kin removed the ladies items from the care home before \i even got there. The care home said that their legal advisors told them she could go and remove what she wanted. She was not even a proper next of kin. My client’s sister is still alive and who the next of kin is, is my client’s granddaughter. They said as a care home they can let anyone take the items and that is what their legal advisor told them. So what do you think is right 😒
The problem is that carehomes CAN ‘lose’ records, even when it’s obvious they were wrongfully destroyed, they can easily fob off the ICO and the council who of course don’t want to admit what’s happened on their watch and pass you back to the carehome. The Ombudsman don’t have to follow their own guidelines (from our experience) and won’t respond to written questions over this. The whole system is set up to delay, distract and divert away from funding and it stinks. Exposure and publicity is the only way it will ever change.
I agree it’s been set up to stop you complaining
The care home have not lost them. When I wrote this I was very frustrated I have since then had a meeting with the care home manager who said” I can not answer any questions to do with care records or any other records” so I left still feeling frustrated. A few days later the cqc report came out on care home ( wondering if it was complaints we put in) and it did not come out favourably neither dis the overall care manager. So now applied for probate to get the records it is so annoying when I am blocked at every turn x
I am currently in battle with a Care Home Company as I have repeatedly requested my late mother’s care plan and am being fobbed off with delay tactics!!!
I believe that there was not one in place and that would be negligence I think.
My late mother’s eternity ring “ disappeared” off her finger one night despite being taped on by myself with micropore tape.
No one from the head office had the decency to contact me for a month and it was only after informing the police of this matter that I was contacted.
They gave all sorts of conflicting reasons as to what “ might” have happened to my mothers ring including her giving it to another resident despite the fact my mother was bedridden in the 1st floor to the fact that if someone had removed it then there would have been bruising and then if the ring was loose it could have fell off.
Strange that the night my mother ring disappeared her finger nails had been cut but surprisingly not either of the 2 members of staff on that night had any knowledge of cutting my mothers nails !!!!
That is why I want her care record as shouldn’t any personal care have been recorded?
I smell a rat.
Hi I am my late FIL’s Executor and the care home he died in had refused to give me access to his records stating that it was his wish. The care home manageress had a copy of his Will and gave away items prior to us being informed of his death “because it was stated in his Will “ yet she was not an executor. I contacted the Information Commissioners Office who said the only route open to me is via the courts because GDPR does not cover the records. I’m getting no where too and the Care Home Manageress is particularly obstructive and confrontational.
I have spent 5 months calling and writing to a care home who refuse to even contact me apart from the obligatory responses of “thank you for your request”
I just contacted the ICO who told me they can’t help as its not within their jurisdiction?
Where do I go now?
Why do councils and Ombudsman not properly investigate missing care records? Why do they not answer questions over it? Why do they allege the police have investigated even though the police cant provide a Crime Reference Number and know nothing about it? Because they are covering up what has happened and they know they can play for time. While this is allowed to continue, vulnerable people in care homes remain at risk Disgraceful.
Hi my husband was in respite care for 3 months July to December last year as no care package
Could be supplied by Wrexham council he requires 2 carers 4 x pd he has advanced Parkinson’s
We observed lack of care when he was in there..complained he was never bathed or changed frequently enough , nothing ever improved, nor was his medication given correctly which is extremely important with Parkinson’s patients
When he finally came home.. only because we had to move to get him into an extra carehome
As he was deteriorating, rapidly,
He had fungal infection open sores in ground and scrotum.. plus a horrendous UTI
As we had moved we were waiting to be accepted by a new GP
So it was several days before he got treatment
If I could post pictures on here I would show you the disgusting neglect he suffered at Care Home
We and the district nurse asked for records from there as he was supposed to be under a local GP and nurse
None were forthcoming..
They also lost a full set of false teeth
And blamed him even though he cannot move anywhere ..
It has been reported to CQC, and SS
Elderly endangerment team, but quite frankly they really have done much to our satisfaction
I’m trying to pursue obtaining records,
How can I do this please, without incurring cost of a solicitor
I am 18 months in on a retrospective review for CHC for my late father… He was in a care home for 2-3 years. Bed bound, gangrene, vascular dementia etc. I have recently received the NPD, which looks like they have cherry picked his best moments! Also It seems the NPD is for just the last 6 months of his life. Apparently he had ‘Previous Assessed Period of Care’ for the first 2 years without my knowledge despite having LPA in place.
Is it possible to appeal the original checklist assessments?
I am assuming I will have to open an official complaint first & would this likely jeopardise the progress so far?
Hi Phil – Yes you may have an uphill battle but don’t give up. You will need to lodge a complaint if you were LPA and were never informed about previous assessments. Kind regards
My advice is to seek legal help. I can recommend Farley Dwek Solicitors who specialise in CHC claims. Well worth the 20% no win fee.
My son’s carehome has also lost his records, coincidentally while being investigated for safeguarding failures!!
They have given various conflicting accounts, saying that they were unlawfully removed, they were given to me, they were destroyed under GDPR etc and even that then police have investigated the loss, guess what – there police don’t have any trace of a loss notified or any investigation! Some of the records were medical/health and all were sensitive. Coventry council have refused to answer questions over it and have misled the ombudsman telling them that there has been a police investigation. The ICO have merely issued an infringement letter, no prosecution or published decision or fine. We have been blocked at every stage from finding out whats happened and the carehome has refused to answer questions. I smell a rat.
It’s essential you get hold of your relatives care notes particularly if they are still in a care home .
Once a relative is deceased it becomes extremely difficult . I have recently been refused access to my late mother’s care notes by the information Commissioner’s Office even though I am executor of her estate . The council who hold the records considers requests for access to information under the freedom of information Act 2000 as opposed to the access to Health Records Act 1990 ( which allows me as executor to have access to these records) . The council refused me access and the decision was supported by the information Commissioner in previous cases . I subsequently received a negative review of my late mother’s request for retrospective NHS funding due to “lack of evidence “which of course was obvious as they wouldn’t release me the “evidence “ does not seem right or fair to me
Does anyone know if the same rules for releasing care records apply to a care agency? During the final weeks of Dad’s life the CCG commissioned some care from a care agency. To ensure we had a complete record of dad’s care we asked the agency for his records after his death but they have not even bothered to reply. They have simply ignored all correspondence on the matter. I know the agency staff kept records. There was a file which was in the house throughout Dad’s final weeks. After dad’s death it was collected and all attempts to get a copy have failed. The poor quality of some staff and unprofessionalism of the company generally was a shock as we assumed the CCG would only commission care on a parr with that provided by NHS nursing teams. Can we follow the suggestions in the article for accessing care home records and use the same Access to Health Records regulations and report the company to the Information Commissioners Office if they continue to ignore all our requests?
The care home LOST my parent’s records! This has been a real impediment to claiming for retrospective funding and appealing against the initial refusal.
Will prob need my mothers had the usual…
You can’t have chc but we will give you fnc instead..had the checklist and been asking for a copy ( flawed)..for the past 5/6 weeks now..keep being fobbed off..so the fight begins.
Mother is still being funded she has been in nursing home for 12 months given chc initially
Still has the same nursing care needs if not slightly more now…local council now asking for payment…Haven’t paid anything as yet.