> ### CIVIL PROCEDURE PRE-ACTION PROTOCOLS

> ### CLINICAL NEGLIGENCE PROTOCOL

> ### ANNEX B

> ### Medical Negligence and Personal Injury Claims

> ### A Protocol for Obtaining Hospital Medical Records

> Civil Litigation Committee

> Revised Edition June 1998

> The Law Society

> ### APPLICATION ON BEHALF OF A PATIENT FOR HOSPITAL MEDICAL RECORDS FOR USE WHEN COURT PROCEEDINGS ARE CONTEMPLATED

> ### PURPOSE OF THE FORMS

> | This application form and response forms have been prepared by a working party of the Law Society's Civil Litigation Committee and approved by the Department of Health for use in NHS and Trust hospitals. The purpose of the forms is to standardise and streamline the disclosure of medical records to a patient's solicitors, who are investigating pursuing a personal injury claim against a third party, or a medical negligence claim against the hospital to which the application is addressed and/or other hospitals or general practitioners.

> ### USE OF THE FORMS

> | Use of the forms is entirely voluntary and does not prejudice any party's right under the Access to Health Records Act 1990, the Data Protection Act 1984, or ss 33 and 34 of the Supreme Court Act 1981. However, it is the Department of Health policy that patients be permitted to see what has been written about them, and that healthcare providers should make arrangements to allow patients to see all their records, not only those covered by the Access to Health Records Act 1990. The aim of the forms is to save time and costs for all concerned for the benefit of the patient and the hospital and in the interests of justice. Use of the forms should make it unnecessary in most cases for there to be exchanges of letters or other enquiries. If there is any unusual matter not covered by the form, the patient's solicitor may write a separate letter at the outset.

> ### CHARGES FOR RECORDS

> | The Access to Health Records Act 1990 prescribes a maximum fee of £10. Photocopying and postage costs can be charged in addition. No other charges may be made. The NHS Executive guidance makes it clear to healthcare providers that 'it is a perfectly proper use' of the 1990 Act to request records in that frame-work for the purpose of potential or actual litigation, whether against a third party or against the hospital or trust. The 1990 Act does not permit differential rates of charges to be levied if the application is made by the patient, or by a solicitor on his or her behalf, or whether the response to the application is made by the healthcare provider directly (the medical records manager or a claims manager) or by a solicitor. The NHS Executive guidance recommend that the same practice should be followed with regard to charges when the records are provided under a voluntary agreement as under the 1990 Act, except that in those circumstances the £10 access fee will not be appropriate.

> ### THE NHS EXECUTIVE ALSO ADVISES

> | That the cost of photocopying may include 'the cost of staff time in making copies' and the costs of running the copier (but not costs of locating and sifting records). That the common practice of setting a standard rate for an application or charging an administration fee is not acceptable because there will be cases when this fails to comply with the 1990 Act.

> ### RECORDS: WHAT MIGHT BE INCLUDED

> | X-rays and test results form part of the patient's records. Additional charges for copying X-rays are permissible. If there are large numbers of X-rays, the records officer should check with the patient/solicitor before arranging copying. Reports on an 'adverse incident' and reports on the patient made for risk management and audit purposes may form part of the records and be discloseable: the exception will be any specific record or report made solely or mainly in connection with an actual or potential claim.

> ### RECORDS: QUALITY STANDARDS

> | When copying records healthcare providers should ensure -
> 1. | All documents are legible, and complete, if necessary by photocopying at less than 100% size.
> 2. | Documents larger than A4 in the original, e.g. ITU charts, should be reproduced in A3, or reduced to A4 where this retains readability.
> 3. | Documents are only copied on one side of paper, unless the original is two sided.
> 4. | Documents should not be unnecessarily shuffled or bound and holes should not be made in the copied papers.

> ### ENQUIRIES/FURTHER INFORMATION

> | Any enquiries about the forms should be made initially to the solicitors making the request. Comments on the use and content of the forms should be made to the Secretary, Civil Litigation Committee, The Law Society, 113 Chancery Lane, London WC2A 1PL, telephone 0171 320 5739, or to the NHS Management Executive, Quarry House, Quarry Hill, Leeds LS2 7UE. The Law Society May 1998

> ### APPLICATION ON BEHALF OF A PATIENT FOR HOSPITAL MEDICAL RECORDS FOR USE WHEN COURT PROCEEDINGS ARE CONTEMPLATED

> This should be completed as fully as possible

> Insert Hospital Hospital Name and Address

> TO: Medical Records Officer

> 1 (a) | Full name of patient (including previous surnames) |
> (b) | Address now |
> (c) | Address at start of treatment |
> (d) | Date of birth (and death, if applicable) |
> (e) | Hospital ref. no if available |
> (f) | N.I. number, if available |
> 2 | This application is made because the patient is considering |
> (a) | a claim against your hospital as detailed in para 7 overleaf | YES/NO
> (b) | pursuing an action against some one else | YES/NO
> 3 | Department(s) where treatment was received |
> 4 | Name(s) of consultant(s) at your hospital in charge of the treatment |
> 5 | Whether treatment at your hospital was private or NHS, wholly or in part |
> 6 | A description of the treatment received, with approximate dates |
> 7 | If the answer to Q2(A) is "Yes" details of (a) the likely nature of the claim, (b) grounds for the claim, (c) approximate dates of the events involved |
> 8 | If the answer to Q2(B) is "Yes" insert (i) the names of the proposed defendants |
> | (ii) whether legal proceedings yet begun | YES/NO
> | (iii) if appropriate, details of the claim and action number |
> 9 | We confirm we will pay reasonable copying charges |
> 10 | We request prior details of (i) photocopying and administration charges for medical records (ii)number of and cost of copying x-ray and scan films | YES/NO YES/NO
> 11 | Any other relevant information, particular requirements, or any particular documents not required (e.g. copies of computerised records) |
> | Signature of Solicitor |
> | Name
> | Address
> | Ref.
> | Telephone Number |
> | Fax number |
> Please print name beneath each signature. Signature by child over 12 but under 18 years also requires signature by parent Signature of patient Signature of parent or next friend if appropriate
> Signature of personal representative where patient has died

> ### FIRST RESPONSE TO APPLICATION FOR HOSPITAL RECORDS

> NAME OF PATIENT Our ref Your ref |
> 1 | Date of receipt of patients application |
> 2 | We intend that copy medical records will be dispatched within 6 weeks of that date | YES/NO
> 3 | We require pre-payment of photocopying charges | YES/NO
> 4 | If estimate of photocopying charges requested or pre-payment required the amount will be | £ / notified to you
> 5 | The cost of x-ray and scan films will be | £ / notified to you
> 6 | If there is any problem, we shall write to you within those 6 weeks | YES/NO
> 7 | Any other information |
> | Please address further correspondence to |
> | Signed |
> | Direct telephone number |
> | Direct fax number |
> | Dated |

> ### SECOND RESPONSE ENCLOSING PATIENT'S HOSPITAL MEDICAL RECORDS

> Address | Our Ref. Your Ref.

> 1 | NAME OF PATIENT: We confirm that the enclosed copy medical records are all those within the control of the hospital, relevant to the application which you have made to the best of our knowledge and belief, subject to paras 2-5 below | YES/NO
> 2 | Details of any other documents which have not yet been located |
> 3 | Date by when it is expected that these will be supplied |
> 4 | Details of any records which we are not producing |
> 5 | The reasons for not doing so |
> 6 | An invoice for copying and administration charges is attached | YES/NO
> | Signed |
> | Date |

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