Faster and free - Your clients’ right to medical records under GDPR?

The introduction of the General Data Protection Regulation (GDPR) back in May generated a lot of uncertainty and work for businesses but created clear benefits for us all as individual “data subjects”. One up-side that went largely unnoticed is the right for clinical negligence claimants to have free access to their medical records.

Before this summer, even just the mention of GDPR might be met with groans from colleagues tired of hearing about this important but inevitably complex piece of legislation that all of us in any sort of business had to get our heads around, to some extent.

However, one specific aspect that has been of particular interest to all of us who work on behalf of people who have been harmed by medical malpractice, is the impact that the Regulation has had on accessing a client’s medical records.

The right to see the information that medical professionals have recorded about us isn’t new, of course. Such rights were certainly codified under GDPR’s predecessor the Data Protection Act in 1998 and, to a limited extent, the Access to Medical Reports Act back in 1988.

Two key aspects of GDPR have already had a significant impact on how such matters are progressed. First, the regulation has reduced the amount of time that an organisation has to respond to a subject access request (SAR) from 40 to 30 calendar days, speeding up the process of assessing a claim which should be ultimately beneficial for all parties.

Second, and perhaps more important, has been GDPRs provision that organisations are no longer permitted to charge an administration fee for responding to a SAR, in most instances. As well as making it easier for prospective clinical negligence clients to get hold of their medical records before a specialist solicitor assesses the merits of their case, this also has the effect of speeding up the claims process. 

These implications of GDPR are not entirely uncontentious and there has been some resistance, particularly for some smaller medical organisations such as GP surgeries, claiming to be overwhelmed by the demand to review large, historic medical files in order to redact data about any third parties who may not have consented to the release of any information about them.

There remains some uncertainty around precisely where such responsibilities fall but, on the whole, GDPR appears to have supplied a rare improvement for claimants trying to assert their legal rights in what are often the most difficult of circumstances.

While surveying its members on the impact of such requests, the BMA has produced some useful guidance for the medical profession about GDPR, particularly its FAQs related to SARs.

Like all legislation, there are clearly some wrinkles that still need to be ironed out. Nonetheless, anything that speeds up the lengthy process of seeking redress for injury caused by clinical negligence can only be a good thing, for all parties involved.

Have you and your clients registered with our Business Legal services website to receive free monthly business law bulletins?

This month’s bulletin is out. Subscribers can read about “last straw” resignations – which can expose businesses to claims for unfair dismissal, get practical advice and brush up on disability discrimination law and there’s also an item on planning law.

To receive our monthly business law bulletins, you will need to opt-in when prompted at the time you register to use the site for the first time. Registration is simple and will give you/your clients access to the law guide and a comprehensive range of sophisticated legal documents which can be customised to meet circumstances. The result is far superior to using flat template documents that have to be amended to meet business needs and our documents can be relied upon in court without seeking further legal guidance.

If you’ve already registered to use the Business Legal Services web site but didn’t opt-in to receive our business bulletins, you can change your preferences by clicking through to “My Account”.

D-ARAG-ON RACERS!

On Sunday the 10th of June our team of Viking warriors, the D-ARAG-ON RACERS, took part in the Bristol Dragon Boat Festival. This festival is an annual event organised by the Rotary Club of Bristol in order to raise money for Caring in Bristol, a charity to benefit the homeless.

After weeks of training an elite team of 20 D-ARAG-ONS took to the high seas (well, the Bristol harbour) and raced against 29 other teams to see who could cover 200m in as short a time as possible. We had three attempts at this and got better with every run. Our final round we were over 5 seconds faster than the first!

Whilst we came 27^th out of 30 we still had a great time on the day, raising money for Caring in Bristol and our charity of the year Focus. We managed to raise £1,182.50 (including Gift Aid) in advance and even more on the day in cash donations from fans and supporters.

We also had an ARAG yellow gazebo set up by the water all day with our Head of Sales, Andy Talbot, flipping burgers for hours on end to keep the hungry D-ARAG-ONS and their friends and family fuelled up for the races.

It was a really great day, with fantastic weather and a lot of fun had by all. And we were watching the techniques of the best teams, so we’ll do much better next time!

If you'd like to donate towards this great cause you can do so by clicking here to go to our Virgin Money Giving page.

Click here to watch the team warming up!

Claims likely to rise following the abolition of employment tribunal fees

The abolition of Employment Tribunal Fees following UNISON’s successful Supreme Court appeal swept away a significant affordability barrier to individuals bringing claims against their employers or ex-employers.

There has been happy anticipation in the legal press that a surge of cases would emerge as access to justice was restored. Employment lawyers have fondly reminisced about a time before fees when individuals could more easily afford to bring claims. Commentators have speculated about the impact that the outcome of the UNISON case might have on the volume of future employment tribunal claims.  Will claims volumes increase to 2013 levels?

Rates have remained steady since ARAG entered the UK market in 2006 despite legal costs inflation. We should explain that over the last four years, any cost savings that it may have been assumed would have resulted from fewer employment tribunal applications have been tempered by:

·         a deflection of costs from tribunal representation to ACAS early conciliation. Early conciliation has been a significant factor in encouraging parties to settle disputes and reducing applications to tribunal. We cover legal costs to represent businesses throughout early conciliation. More than 92,000 complaints were notified for early conciliation in 2015/16 and in 48% of cases tribunal applications were avoided;

·         payment of employment tribunal fees either as part of an agreed settlement or as a consequence of losing a claim at tribunal; the Government’s undertaking to repay fees does not extend to employers (or their insurers) who were liable to pay them;

·         the effect of inflationary influences which have not been passed on to customers over time.    

Anecdotally, tribunals have reported an increase in the number of applications being received. We are hearing of long waits for hearings to be listed as applications back-up. The Employment Tribunals National User Group (England & Wales) noted, at its October 2017 meeting, that Regions were reporting a doubling in new claims since the UNISON decision. http://bit.ly/2D6RACE

Significant court closures, mergers and relocations and a shortage of employment tribunal judges, have contributed to the pressure felt by some tribunal centres. Additionally, the judgment in a particular case means that single claims may be brought where a multiple claim may have previously been brought; however the Government’s July to September 2017 tribunal statistics (published in December 2017) showed that single claim Employment Tribunal receipts are up by 64% over the previous quarter. http://bit.ly/2BoN01T This represents a sharp and immediate increase in risk for legal expenses insurers.

We are not going to mirror such an increase by raising premiums by the same extent (64%) or anything close to that; however, we will continue to monitor official tribunal statistics and our own claim volumes. Our Underwriting Team will carefully consider claims experience in light of previous employment claims and forecast the likely increase in claims to determine the future premium required.

3 legal developments that probably won’t happen in 2018

There’s any number of articles around at this time of year telling us about legal developments that are coming up in the next 6 to 12 months.

From the annual increases to tax allowances, minimum wage rates, and statutory pay for sickness, maternity and other family-related absence, to much more fundamental changes such as the new gender pay gap reporting requirements to the much heralded General Data Protection Rules (GDPR) there is a lot that UK businesses need to prepare themselves for, by springtime.

But, looking further into 2018, there is also plenty of legislation that has been proposed but is still a long way from the statute books, let alone an implementation date.

The combination of the government’s surprisingly weakened position in the House of Commons since last June’s election and the inevitable priority that must be given to the legislation necessary to deliver an orderly exit from the European Union, has greatly reduced the political capital and parliamentary time available to other legislation.

The free vote that the Prime Minister had promised on repealing the 2004 Hunting Act was an early casualty in 2018, but there are a few other initiatives unlikely to get before parliament, onto the statute books and into force by the end of the year.

Tribunal fees strike back?

As recently as October, (then) Lord Chancellor David Liddington claimed the government still wanted to replace the employment tribunal fee regime struck down by the Supreme Court last summer. However, higher priorities for the Ministry of Justice and the reduced income that any fair and workable system could raise, will make quick progress on this unlikely.

LASPOA reform

Formal assessment of the impact that five years of the Legal Aid, Sentencing and Punishment of Offenders Act (2012) has had on access to justice, was finally timetabled by David Liddington last year, and is due to report by the end of April. Given the time it has taken even to get the assessment underway, the prospect of any major reform of the legislation being implemented in 2018 seems remote.

Civil Liability Act

Another piece of MoJ business that we seem to have been talking about forever, is the Civil Liability Bill mentioned in last year’s Queen’s Speech. The proposed increases to small claims court limits of £5,000 for road traffic injury claims and £2,000 for other injuries appear to be set in stone, but the faltering progress these reforms have seen since George Osborne first announced them in 2015, makes a September implementation seem less likely than April 2019.

Unlikely as these three developments may be to see legislative action this year, there is more than enough reform taking place in 2018 to keep us all busy. The uncertainty surrounding the implications of Brexit, especially what it means for employment law, should become clearer as the year progresses. But one piece of EU reform that seems certain to survive, GDPR, should be enough to keep us all busy, at least until the summer.

Scottish Parliament consults on raising court fees

Just like the star of Bethlehem, legal costs are in the ascent in Scotland.

The Scottish Government is consulting on raising court fees for Scottish jurisdiction. Its objective is to ensure that the fees collected are sufficient to pay for running its courts.  A “demand-led” remission scheme is available which is intended to protect access to justice.

https://consult.gov.scot/courts/scottish-court-fees-2018-2021/user_uploads/00526265-2.pdf

Court fees have generally been reviewed every three years, with the last full round being implemented in 2015.

In 2016 the Scottish Government concluded that it was necessary to move further towards full-cost recovery in the courts, which has been the policy of the current and previous governments for some time. The Court Fees (Miscellaneous Amendments) (Scotland) Order 2016 came into force on 28 November 2016.  This order raised the level of fees significantly, although certain fees, such as those in the Sheriff Personal Injury Court, were frozen in order to protect access to justice.  The overall effect was intended to bring the level of fees to the point at which they cover the costs of the civil justice system. 

Inflationary pressures in the wider economy have driven the Scottish Government to adhere to the original three yearly review to set fees for the three- year period commencing on 1 April 2018 (by which point it will be 17 months since the last fees increase).

Unlike the position in England & Wales, where a policy of enhanced court fees has developed, it is not intended that court fees should move to a point where a profit is made (that could be used to subsidise other parts of the justice system).

A separate but connected development is the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill currently before the Scottish Parliament. The Scottish Government state that this will make the costs of civil action more predictable by increasing the funding options for pursuers of civil actions through greater availability of “no win, no fee” success fee agreements.   

 It is proposed that qualified one-way cost-shifting should be introduced for personal injury claims and this will also protect pursuers from the risk of having to pay their opponent's costs in personal injury cases if the case is lost, provided they have acted properly (as in England & Wales). 

LEI ensures that personal injury claimants are able to keep their damages in full. Considered together these two developments support the premise that LEI will provide even better value than before for our policyholders in Scotland.

Landlords Legal Solutions

By the way – a reminder that we have updated our Landlords policy to reflect the new landlord and tenant law in Scotland.

With all best wishes for the festive season from the Product Development team at ARAG.

Now is the winter of our… actually quite contented, thank you very much.

As anyone in the insurance industry knows, claims service can be the hardest thing to get right but great service can often go unappreciated. Winters are inevitably tricky for home emergency claims, which come in waves on the back of bad weather, leaving customers distressed and anxious. So, we’ve been particularly pleased with some of the positive feedback our claims handlers have been getting, as winter arrives.

“Lovely”, “Thrilled” and “Fantastic” are not words often used in the insurance claims process, but all are among the many plaudits offered by ARAG Home Emergency policyholders as we helped them through some of the stressful events that the recent storms brought with them.   

“A lot of our Home Emergency business is in the High Net Worth sector,” comments Head of Sales, Andy Talbot “so, customer expectations are understandably high. But that makes feedback like this all the more gratifying.”

It’s no secret that the key to delivering any service is setting clear expectations and meeting or surpassing them. Customers are generally understanding, even at the worst of times, but they need to feel that someone has a plan and the expertise to put things right, as quickly as possible.

“We don’t try to pretend that we never fall short of our own, very high standards and there are always surprises that old properties and a British winter can throw at you,” continues Andy, “But we’re the first to put our hands up if something doesn’t go according to plan, and the claims teams are brilliant at keeping customers informed and helping them through what are always really stressful times.”

“Quality of service has always been one of the key things that ARAG has differentiated on. So, we really have to deliver on that. As we head into another winter, I’m really pleased that we’re living up to the high standards that partners and policyholders have come to expect of us.”