Cantilever House

Cantilever House

Eltham Road

London SE12 8RN

Email:

Tel: 020 7206 3200

Ref: LEWQTR/1213/026

To:

26 October 2012

Dear Mr Edwards

Thank you for your email received in this office on1 October 2012asking for an internal review of your requestunder the Freedom of Information Act 2000.The enclosed letter outlines our reply tothat request.

Summary

On 11 October 2012, Martin Wilkinson, Managing Director wrote to you confirming that an Internal Review would be undertaken in line with Freedom of Information Act 2000 and the Code of Practice. The Internal Review looked at the handling of your request and the information provided in the response. We have endeavoured to respond within 20 working days from receipt of your correspondence received by us on 1 October 2012.

Overview of the Request

On 3 September 2012 you made the following Freedom of Information requestfrom the :

I understand pursuant to the National Health Service Constitutionyou have a duty to ensure the quality of care and theconfidentiality of patients for the services you provide. I wouldbe grateful as would other patients in the Lewisham area to know whether the:

1. The administrative staff at the PCT owe a duty of care to thepatients, when the make a complaint?

2. The PCT has a duty to ensure that the Medical Records ofpatients in its area of responsibility?

3. What the appropriate response is for the PCT if a patient’smedical records have been accessed without authorisation andfalsified?

The following response was made by Lesley Aitken on behalf of the PCT within the required timescale on 28 September 2012:

1. The PCT commission a service from healthcare providers with the duty of care being between the clinician and patient. The PCT has processes in place to enable the patient to raise issues they have with the provider service through an honest broker service between the provider and patient on the patient’s behalf. If the patient is not satisfied with a response from the provider service the PCT will supply details on how to refer on to the GMC or the ICO dependent on the nature of the complaint.

1. We have interpreted your question as a request for clarification on the Primary Care Trust’s responsibilities for GP health records. The PCT has responsibility for the physical record but not the information contained within it. To put this is into some sort of context the PCT is responsible for the GP health record when it is not actively being used by a clinician to support the delivery of clinical care, such as when a patient is transferring between GP practices or following a patient’s death.

The information contained within the physical record is governed by NHS legislation and the GP contract for the provision of general medical services and regulated by professional bodies as maintaining records is a requirement of good clinical practice.

1. Lewisham PCT treats each incident as unique and therefore would not be able to apply a generic response to this question. Any response would depend upon the detail and circumstance of the incident. The PCT can provide information on how to complain to the GMC or ICO depending on the nature of the incident.

Review of Our Response and Handling of the Request

Under the terms of the Freedom of Information Act 2000, s. 4 we are obliged to provide information“held at the time” at the time of the request. The Act does not require us to create information in response to a request but to provide information we hold.

Having reviewed your original request, the meaning of question 2

‘2. The PCT has a duty to ensure that the Medical Records of patients in its area of responsibility?’

was unclear and clarification could have been sought. However, we consider the interpretation and response to be reasonable. The only medical records within the remit of the Primary Care Trust as a commissioner are GP records that are managed in the circumstances described in our response.

Overall, we find the reasons to your request reasonable and proportionate based on a clear interpretation of generic phrases within a health setting such as “duty of care”. This is usually applied to the relationship between patient and clinician. We do note that responses were properly provided under s.16 of the Act our duty to advise and assist, not falling strictly within the terms of information we hold. In our view, the questions asked for the expression of an opinion or interpretation.

We note that no exemption was applied and the information was provided within the statutory limit.

We note that your request for internal review,received in this office on 1 October 2012, included the following additional questions:

1. This is clearly not a response to the question I originally raised. Do PCT Administrative Staff owe a Duty of Care to patients to investigate complaints? The Information Commissioner and GMC have entirely separate functions to deal with Fitness to Practice and the DPA 1998.

1. Thank you for this response, it was very useful explanation of the PCT responsibilities regarding patient records. I would be grateful if you could publish the regulatory guidance on how the PCT protects the physical media of GP records.

1. I would be grateful if the response includes the procedures used to engage with the GMC and ICO internally. Your answer seems to suggest that the responsibility for handling the engagement with the ICO, GMC and other Public Authorities is the patients.

It is my understanding that a situation when the complaint has beenmade to the PCT, and the complaint is undertaken within itscomplaints procedures and the PCT would engage the regulators. Thiswould seem sensible since the patient would not have access to themedia of the records and the logs.

I would be grateful if you can provide the procedures and processesthat would be followed if a complaint was made to the PCT pursuantto The Local Authority Social Services and National HealthService Complaints (England) Regulations 2009, in response to theoriginal question.

With these questions the subject line on your email stated ‘internal review of Freedom of Information request – Duty of Care owed to patients. Lesley Aitken confirmed with you on 1 October 2012 that you were requesting an internal review on the original request.

Next Steps

The Freedom of Information Act 2000 s. 14 (2) states that an organisation does not have to comply with repeated or substantially similar requests from the same person other than at reasonable intervals. We judge that is it reasonable to interpret the following questions as repeat requests.

1. Thank you for this response, it was very useful explanation of the PCT responsibilities regarding patient records. I would be grateful if you could publish the regulatory guidance on how the PCT protects the physical media of GP records.

1. I would be grateful if the response includes the procedures used to engage with the GMC and ICO internally. Your answer seems to suggest that the responsibility for handling the engagement with the ICO, GMC and other Public Authorities is the patients.

It is my understanding that a situation when the complaint has beenmade to the PCT, and the complaint is undertaken within itscomplaints procedures and the PCT would engage the regulators. Thiswould seem sensible since the patient would not have access to themedia of the records and the logs.

I would be grateful if you can provide the procedures and processesthat would be followed if a complaint was made to the PCT pursuant to The Local Authority Social Services and National HealthService Complaints (England) Regulations 2009, in response to theoriginal question.

We will consider these requests as “repeat” requests under the Act and would invite you to resubmit your request again when 3 months have elapsed from the date of our initial response to you i.e. no earlier than 28 December 2012

In relation to your supplementary question,

1. This is clearly not a response to the question I originally raised. Do PCT Administrative Staff owe a Duty of Care to patients to investigate complaints? The Information Commissioner and GMC have entirely separate functions to deal with Fitness to Practice and the DPA 1998.

We judge that responding to them as part of this internal review would not be appropriate and this will now be treated as a new request and as will be responded to within 20 working days from the date of this letter.

Conclusion to your Internal Review

As noted above, we found our response to your request reasonable and proportionate. We note that clarification, particularly on the second question, could have been sought but our interpretation was reasonable within the context. We would also note that the information was provided under s.16 of the Act, duty to advise and assist, and did not directly relate to the principle of information held. In that the information was created in response to your request and not held.

All responses were in required timescales, no exemption or information was excluded and a response was provided to each of your questions based on a reasonable interpretation.

We also judge that those questions raised in your request for an internal review are supplementary and will be responded to in line with those laid out above.

If you are unhappy with the outcome of this review, you have a right to complain to the Information Commissioner’s Office.

Who can be contacted at:

Information Commissioners Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Telephone: 01625 545 700

Internet:

Yours sincerely

Martin Wilkinson

Managing Director