The Trust failed to request the relevant records from Hospital X, telling Ms S she would have to request them herself
15. When we look at a complaint, we first use relevant standards, law, policy and guidance to inform us what should happen. We then look at all the evidence from those involved in the complaint to tell us what did happen. If we reach a view this fell short of what should happen, then it is a failing. We often refer to this as ‘maladministration’. Next, we consider the severity of the injustice and the impact claimed, and whether we can link this to the claimed failing. We finally look at what an organisation has done to put things right, and whether this is enough. If we consider the failing is severe and the organisation has not done enough to put things right, we may make recommendations.
16. The information which first tells us ‘what should happen’ is the online NHS guidance. This tells people to request medical records at source, and says some hospital trusts have a special form for doing so. This is in line with the subject access request (SAR) process used by many trusts (an SAR is an individual’s legal right to request and receive all information an organisation holds about them). This advice was in use at the time of the complaint, and was introduced in line with the Data Protection Act (DPA) 2018, which implements the GDPR 2018, a European Union regulation.
17. The first data protection principle of the DPA, section 2(b), says data should only be used when ‘the processing is necessary for the performance of a task carried out for that purpose by a competent authority’. The third data protection principle says any data use should be ‘not excessive in relation to the purpose for which it is processed’.
18. This means an organisation should only request/process/use the minimum data needed to perform a required task. In this case, the Trust requested only the specific records it needed from Hospital X to conduct an assessment and care plan for the current state of Ms S’s foot.
19. The Trust initially asked Ms S to sign a consent form, so it could consider the concerns she had raised about Hospital X. The letter asked for her agreement to share her complaint with Hospital X and receive a response, which the Trust would incorporate into its own complaint response to her. This is in line with its own and NHS complaint regulations. When a person’s complaint concerns more than one organisation, the regulations allow them to complain to the first organisation, who will then co-ordinate a response with the second organisation.
20. Within her complaint, Ms S asked the Trust to get certain clinical letters from the consultant and scans from Hospital X for the period March 2016 to January 2017. She also asked the Trust to produce a response saying Hospital X’s actions had caused the injury (arthritis) to her foot. We note any complaint about the operation is already out of time for legal action. Hospital X’s response letters also show it had already provided both Ms S and her solicitor at the time with a full set of clinical records and images.
21. In the Trust’s response of 6 February 2020, it explained it had the scans but considered it did not need the letters. It continued, Ms S’s GP had referred her to the Trust for a second clinical opinion and not for a medico-legal opinion (a view relating to both medicine and the law). The Trust says its role was to carry out a new assessment rather than consider what happened previously at a different hospital. The Trust declined to comment on the actions of the Hospital X consultant, saying it was outside their own consultant’s area of responsibility. It advised Ms S to make an SAR for her medical records addressed directly to Hospital X.
22. The Hospital X website includes information for patients on how to request clinical records (Information Governance section, ‘Your rights’). This is a straightforward process commonly used across many trusts for requesting health records.
23. We see the Trust was providing treatment and a second opinion, as Ms S’s GP had requested. The Trust considered it did not need the notes from Hospital X, and so had no reason to request them. We consider it acted in line with DPA guidance on requesting only necessary information. Our role is not to tell an organisation what it should or should not request in terms of the information needed to carry out its work, but to consider whether it had followed the correct process. We consider there are no signs of failings.
24. In addition, information shows Hospital X had provided the relevant clinical records and images at some point before August 2019 to both Ms S and her solicitor at the time.
25. In summary, we can see the Trust got consent from Ms S, and it then reached a view about the records it considered relevant for its needs at the time. About the remaining records, it clearly informed Ms S how to request them herself.
26. We have seen no sign the Trust provided a list of each and every specific record it said it would get, then failed to do this. Further, we can see the Trust acted in line with the DPA by requesting and gaining access only to the relevant and specific records it needed at the time. So, we have not identified a failing and will take no further action.
The Trust failed to give a view on Hospital X’s care and treatment
27. The NHS website says a patient has the right to ask for a second opinion on their care, for example, when a person is not satisfied with the care and treatment proposed. However, there is no legal right to a second opinion, so a trust can decline to do this.
28. We note Ms S was not specifically asking for a second opinion, but was seeking the views of another trust on her previous care and treatment. In this case, there are no national guidelines based upon which we can reach a view. So we discussed this matter internally with our clinical team and legal department to help us reach a view.
29. The Trust’s follow-up response on 1 April stated again its duty was not to give a medico-legal opinion, and so it would not comment on past imaging or care provided at another organisation. It also said the Trust consultant’s view regarding Ms S’s foot was, ‘the level of arthritis at the joint is not sufficient to warrant or necessitate surgical intervention’.
30. In the Trust’s response dated 1 April 2020, it responded in full about concerns Ms S had raised about the Trust’s care and treatment on 13 December 2019. The Trust restated the above information regarding its own assessment of her foot. It also said again it would not comment on the imaging or care provided by another hospital.
31. We see the Trust considered Ms S’s request, then declined it, giving its reasons (it considered this to be a medico-legal view). Our view is, even if this was a request for a second opinion (which it was not), there is no legal right to an opinion. The Trust considered the request and then provided its reasons for declining it. So, we do not consider this represents a service failing, and we have taken no further action on this issue.
The consent form
32. The NHS complaint procedure says, ‘the organisation that receives your complaint must co-operate with other organisations to ensure you receive a co-ordinated response’. This means where a complaint names multiple organisations, the first organisation the complaint is directed towards must take the lead in bringing all parts of the complaint together.
33. When Ms S made her complaint to the Trust, she explained she also had a complaint about Hospital X. Based on the NHS Complaint Standards, we would expect the Trust to co-ordinate with the other organisations involved to bring about a full and complete response.
34. In line with this procedure, the Trust sent Ms S a consent form to agree to the sharing of information with Hospital X. The letter said it would incorporate Hospital X’s response in its own response.
35. Upon more detailed examination of the issues Ms S raised about Hospital X, it appeared they were not current, and Hospital X had already responded to her concerns. Ms S then asked the Trust to give a view on the care and treatment Hospital X gave to her four years before.
36. In handling the complaint, the Trust decided it would not be appropriate to give a view on the work another hospital did before. Also, it considered it did not need the paperwork in question from Hospital X, in order to provide Ms S’s current treatment.
37. Ms S was disappointed to learn this. She told us the Trust had not done what it said it would do.
38. As the Trust considered and progressed the complaint, it changed its approach and declined to request the information above. It did, however, request the scans from Hospital X it felt were necessary to treat Ms S, so we see there was a willingness to co-operate when appropriate.
39. We would not expect the Trust to request unnecessary information or to carry out tasks outside its area of responsibility. Under the circumstances, we consider the Trust’s change in approach reasonable.
40. We have not seen any sign of failing when the Trust refused to ask Hospital X for certain information. We can see it gave reasons why it needed some information and why it did not request other information. We have explained earlier the reasons why we consider no failing is attached to this part of the complaint. The signed consent form has shown us the Trust did work across both organisations to manage the complaint, and so we have not seen a failing in its duty here. So, we will take no further action on this issue.
41. We have carefully considered Ms S’s complaint and recognise the frustrations she has experienced. In doing our work, we have not identified failings when the Trust declined to request certain records, and we can see they correctly identified only the relevant documents they needed. We have seen the Trust considered and declined to provide a separate view on Hospital X and gave their reasons for this. We consider this does not show a service failing. Finally, we see the Trust had a signed consent form and it co-ordinated the necessary parts of the complaint. For these reasons, we conclude our investigation as no sign of failing. This brings our work on Ms S’s complaint to an end.