Data Protection Act wrongly quoted in preventing access to care records
The Data Protection Act is often quoted by NHS Continuing Healthcare assessors as a reason to refuse access to care records to those acting on behalf of someone in full time care.
However, as The Information Commissioner, Christopher Graham, has said in relation to the Care Quality Commission hospital cover-up, citing the Data Protection Act in such a way can be an attempt by health and social care authorities to duck out of their responsibilities.
The misinformation about NHS Continuing Care and Data Protection will come as no surprise to many families who are going through the NHS Continuing Healthcare assessment or appeal process. There seems to be a lack of knowledge on the part of assessors about the law – or perhaps it’s an attempt to obstruct the process by incorrectly quoting the law.
The same is true when it comes to powers of attorney. NHS Continuing Care is all about care fees funding – in other words, money. There are two types of Lasting Powers of Attorney – one for property and financial affairs and one for health and welfare. Assessors will often say that you have to have a health and welfare power to access care records in this context. Not true. This is all about funding – financial affairs – and a financial power of attorney is quite acceptable.
Equally, the older Enduring Powers of Attorney (EPA), which cover financial affairs are perfectly valid for the NHS Continuing Care assessment and appeal process, and yet assessors often still make things difficult for families who are trying to use EPAs.
So, when you’re pursuing NHS Continuing Care on behalf of a relative, if you come up against objections to your financial power of attorney – or if someone quotes you the Data Protection Act as a reason to deny you proper access to care records – stand your ground.
Indeed, even the NHS National Commissioning Board in the information it sends to families about Continuing Care reviews states that a registered EPA is acceptable when acting on someone else’s behalf in this context.
Have you been affected by either of these things?