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Should I charge care home staff for reports?

1 - The staff of a care home have asked us for medical reports. These are apparently required by the National Care Standards Regulations. The forms include the phrase 'the applicant will meet the full cost of the report if applicable'. I hate to ask a poorly-paid care assistant to pay but I am not prepared to provide free reports unless I am obliged to. What is your advice?

The medical standards for staff and the documentation required by care homes is set out in the National Care Standards Commission (Registration) Regulations 2001 (SI 2001 no. 3969). Care homes may not employ members of staff unless they are physically and mentally fit for the purposes of the work they are to perform.

For all staff, the home must hold:

lA statement as to the person's fitness to work and have regular contact with service users

lA statement by the person as to the state of his physical and mental health

lA statement by the applicant that the person is physically and mentally fit for the purposes of the work he is to perform;

Even a person applying to run a care home is not obliged to supply a medical report, but may provide a statement as to his or her own state of physical and mental health.

The care homes regulations (SI 2001 no. 3965) (children and young people) set out similar standards and state the home must hold 'evidence that the person is physically and mentally fit for the purposes of the work which he is to perform at the care home or, where it is impracticable for the person to obtain such evidence, a declaration signed by the person that he is so fit'.

There appears, therefore, to be no legal requirement for a doctor's report and we have asked the local and national care standards agencies to confirm this. You are not obliged by your terms of service to provide a report. The Government policy of reducing GP paperwork has also set out to reduce the number of non-essential reports and certificates that doctors are required to supply.

The care home or the Care Standards Agency may insist on a medical report, particularly if there is any doubt about the patient's fitness. If you choose to provide a report, it would be more appropriate for the care home to pay the fee as part of an 'occupational health service'.

You may of course not disclose confidential medical details to a third party without valid explict consent and you should allow the patient to see the report before disclosure under the Access to Medical Records Act.

Second access to notes

2 - A solicitor has asked for a second copy of a patient's medical records after an access request 10 months ago. The new request states the previous consent to disclosure is still in effect and the initial charge will cover this second access. Surely this can't be so?

The patient's wish to give consent could have changed substantially in the interim. Also there could well be additional data included in the notes that would not be covered by the pre-existing consent. Fresh consent would therefore be required before disclosure.

You are not obliged to provide a second copy of notes under the Data Protection Act unless a reasonable period has elapsed. This period has not been defined in law.

If there has been no substantial change in the data, they can photocopy the original.

If there has been a substantial change in the data then the patient is legally entitled to a new copy and you would be permitted to charge as if it is a fresh application, since that is exactly what it is. But it would seem reasonable in that case to limit the data copied to the period since the initial request. You are legally permitted to do this, if the patient agrees. The fee should obviously only reflect the work involved in copying this limited amount of data.

Consent is the key issue in drug test on a patient's hair

3 - I have been asked by a solicitor to arrange a test for drugs on a strand of a patient's hair. Are there any special considerations to take into account and what can I charge?

The results of this test could well have significant legal consequences so it is absolutely essential you have the patient's valid explicit consent to remove a hair and send it for testing.

The consent must be given entirely voluntarily, on the basis of full and understandable information as to the consequences and recorded in writing. The patient must be legally competent to do this. A patient suffering from a drug-induced psychosis or acute intoxication caused by drugs, for example, would probably not be competent to do so.

A signature alone in the notes would probably not be adequate if challenged in a court of law, so the whole process of obtaining consent should be recorded in the notes and the patient should indicate his consent based upon that process.

The Government document Good practice in consent has sample consent forms that could probably be adapted.

This service is not part of your responsibilities under the terms of service, but extracting a hair and sending it off would probably not qualify for much of a fee! But the consent process and any advice given is a much more important part of the consultation and you could charge for this at a reasonable hourly rate.

It would be best not to send the test results direct to the solicitor, but you should ask the patient to send the results to the solicitor. The patient is entitled to a copy of all test results under the Data Protection Act and this tactic would avoid any problems with inappropriate third-party disclosure, for which you could be legally liable. If it is essential for you to send the results directly to the solicitor, you would be best advised to follow the requirements of the Medical Reports Act and show the patient the results and seek explicit written consent prior to disclosure.

If the test and the results appear to be in the patient's best interests these issues are less critical, but if they do not appear to serve the patient's best interests great care is essential. If this is the case you may well need specific advice from your medical defence organisation.

In the absence of further details it is difficult to give more specific advice.

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