Disclosure of medical records/progress notes

Information Governance for our local Trust have decided to stop complying with the Direction for Remote access (Mental Health Tribunal, ‘Direction for disclosure of medical records to legal representatives and to Medical Members of the Tribunal’ (17/11/21)) on the grounds that the direction is linked to the pandemic and we can now review the notes on the ward/CMHT . They say that they have had a meeting with MHT and a new direction is due to be issued shortly. They are also refusing remote access to medical member. We got one specific direction that they should comply and they did on that file. Other CMR1s requesting that they comply on other files have not been dealt with by MHT by the time of the hearing. A couple of tribunals have complained about the situation.

However , today a tribunal declined to direct that they grant remote access on the grounds that this was disproportionate because we could come into the CMHT ( It is a CTO case) to access in person. It seems that there may be a move away by MHT from allowing remote access, which is very concerning. Staff on the ward, and particularly in the community, do not have time to sit with Reps whilst they scan the notes. We are entitled to open 50% of files remotely and have been able to keep some existing clients at a distance this way, but this depends on remote access to the progress notes. Also, we are seeing Covid back on the wards and firms may wish to keep vulnerable staff away, even if they are allowed onto the wards. If the general direction is scrapped I think this should be challenged.


And, of course, they will have to make an exception for the medical member on CVP hearings anyway.

Just trying to think of something non-obvious, but what about asking the First-tier Tribunal to refer the case to the Upper Tribunal under rule 7 (Failure to comply with rules etc)? They fined a headmaster £500 for ignoring a witness summons in the SEN jurisdiction, in CB v Sussex County Council [2010] UKUT 413 (AAC).

Reading between the lines it sounds as though the trust is confident that the MHT is on their side, but instead of ignoring or defying the directions the trust should ask for them to be reconsidered.

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Isn’t this about obstructing the progress of a case? It seems understandable that instruction/consent to disclose clinical records is taken from the client remotely for s2 cases but for any other case, i don’t why the rep (or other staff of the firm) cannot do this in person.

Hi Karen,

Funnily enough I was discussing just this issue (I am assuming it’s KMPT) with Jo Briggs yesterday before a tribunal hearing.

She said that if we are having a problem then we need to alert the Tribunal and get them to direct disclosure. Apparently the issue is that one of the KMPT lawyers thinks that Sarah’s previous direction has expired so they don’t need to disclose notes to us (apparently Medical Members have been having the same issue as us). Once they get a direction they are happy to disclose.

The liaison judge for the Trust has been informed and a new blanket direction is to be issued.

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Try working on Legal Aid rates that haven’t changed for over 10 years Leena, then you’ll see why this isn’t do-able.

In any case, I do not see why we should waste time travelling to a hospital to read notes that can be easily transmitted to us. it wastes time and is bad for the environment.


Working in legal aid…? No thanks.
I suppose I’m wondering, the exception being reps assigned under rule 11, how they can get consent from their client to disclose their medical records. I’m sure Trusts will readily comply (with or without directions) if they are assured that the patient has in fact provided their consent.

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If a new general direction were to refer to patient consent (or best interests) then could anybody legitimately complain?

Sending records electronically would probably be cheaper and easier for the trust than providing staff to chaperone lawyers viewing medical records.

They managed in Wales throughout the pandemic without a general direction. What happens in practice there?

It is KMPT and we have managed to get a specific direction on a couple of cases but on s2 they are not dealing with it quickly enough. Medical members are not being given access at all which would seem to be obstruction under129 so perhaps we could try to get them arrested (Only half joking.)
I know Sarah is in communication with KMPT but this is now on about the third week and it is exhausting.
At the risk of provoking howls of outrage I am going to say that not having to get the client’s specific authority has been a great help. I know many firms have taken the view that they need this anyway but we have just told client’s in initial letter that we will look at their medical records. I have become increasingly irritated with having to get the client’s signed authority before anyone will even speak to you, let alone give you any documents. Back in the day a solicitor just confirming that they had instructions was sufficient. If you are opening the file remotely getting the client to send back the authority will be an ordeal, particularly with CTO clients.

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I have just looked at the decision for the case where MHT refused to direct that I should remotely access the records and I sense that we may have a problem looming. The decision is very pro- trust indicating that they have a legitimate right not to send records by email and citing confidentiality issues. It sounds very ‘party line’ and I fear the MHT may be going to tip against remote access although the MM access is going to be a problem.

What “confidentiality issues” could there be? You must be using the CJSM secure email system, and the trust and tribunal must both regularly send confidential tribunal reports by email.

Indeed , anyway my fears were unfounded as Judge Johnstone has just reissued the original direction without reference to the pandemic. Interestingly, it has the same date of 27/11/21. Maybe because the directions have not changed? (To the extent that there are still 2x point 3!)

Has anyone else been sent the new general direction which doesn’t refer to Covid. We were sent it on a specific case but I wondered if it has been generally circulated?

Just reading this thread with interest and dismay that we may have had to start booking appointments to view records again!

I haven’t yet seen the ‘new’ general direction as yet but definitely welcome it.

At Southern Health NHS Foundation Trust we started receiving the direction with the revised introduction replacing ‘To limit contact and reduce risk during the Covid pandemic I make the following directions’ with ‘To ensure the effective administration of Tribunal hearings I make the following directions’ towads the end of Sept/beginning of Oct 2022.

That is very strange Kizzie. Are you getting them from solicitors or are you a solicitor getting them from MHT? I can’t really work out how these general directions come to be issued in the first place as I don’t think MHT routinely send them out any more.

The direction accompanies every notice of hearing on a section 2 case and the case notification letter on all other applications/referrals to the Mental Health Tribunal sent to our MHA Administrators by MHT.

Really! Maybe that happens here as well then . I wouldn’t know.