Legal Services Department
Requesting health records where a clinical negligence claim is contemplated against the Trust
The Legal Services Department deals with data 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 pdf document below to access the form.
Any data 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.
For the purpose of requesting health records, the Data Protection Act 2018 enables a child over the age of 13 to consent to the release of their data. Where a child over the age of 13 is being represented by a Litigation Friend any request for health records should be accompanied by a consent form signed by the child.
Where a child under the age of 13 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 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:
County Durham & Darlington NHS Foundation Trust
Appleton House
Lanchester Road
Durham
DH1 5XZ
Alternatively requests can be e-mailed to:
cddft.legalservices@nhs.net
'As I was very, very nervous, I must have been the worst patient ever and they were brilliant with me and I can't thank them enough - could you please pass on my sincere thanks.'
Patient, Hysteroscopy Unit, Chester-le-Street Community Hospital