recording a medical or having it recorded

what would help is the atos person asks set questions from a sheet , you could have different question sheets for differnt problems the answers are wrote down as are the notes and views of the atos person at the end of the medical the person reads it and signs it, if it has errors they put the comments on

then the DM has plenty of info if copies are made at the time you could bring a copy away with you

vhawk1951 wrote:

i know it is not illegal since i am a barrister.if it was illegal answering machines would be unlawful.

Surely that can't be entirely correct. Answering machines are devices which allow the caller to leave a message. The caller is informed that they may leave a message. If they choose not to do so, that is their choice. If the person being called chooses and they have the correct technology or service in place they may will have a record that somebody called. ATM the caller who does not wish to have their phone number identified can opt to have that number withheld.

vhawk1951 wrote:

It is probably courteous and polite to state clearly that one intends to make audio notes.

The first answering machine that I had said in the brochure that recording someone during a call without their consent was a breach of their privacy, and to that end the answering machine would, during a call, beep about every 30 seconds to alert the other party that they were being recorded.

I don't know whether answering machines still do that today. It has been clearly established here that covert recording is legal.

What I have not seen established is whether there is a right to overt recording.

If you are talking to someone with an MP3 player sat on the table between you, surely that person is, under usual circumstances, entitled to say that they will take no further part unless the machine is turned off.

If you are answering questions under caution then neither you nor the other party is, IIRC, entitled to demand that no recording be made.

The interesting question is whether the quasi-official nature of the ATOS medical gives them a unilateral right to establish the terms under which the medical takes place. They have, it appears, been given the right to terminate a medical.

I am not clear as to exactly what are the consequences of terminating the medical. From what I have read here, my impression is that, at least under some circumstances, such a termination can remove your right of appeal. For example there is a reasonable point that if you keep refusing to turn up for a medical without good reason (e.g. mental health problems) then you may be assumed to have forfeited you right to demand a different hearing.

It may be that there is no blanket provision, and the DWP (rather than ATOS) has to decide if you can appeal against a decision based on an incomplete medical.

However, if ATOS can declare a medical terminated on whatever grounds they chose, and if that termination will automatically mean a refusal of ESA with appeal, then matters are different.

Such a situation is handing over decisions that should be made by government officials to private organisations. They can not only decide whether your benefit is denied, but whether you can appeal and upon what grounds ATOS themselves can terminate the medical.

Different ATOS offices have different ideas. For one such see

CAG: Experience of WCA :

When I asked the HCP his name as his namebadge was facing away from me, he told me and then asked "Oh, do you intend to take notes?" When I said I did, he said I would need to fill in a form! ... [Then I was told by a receptionist] "Right, you can take notes but only for your own personal use" When I queried what she meant by that, she replied, "Well you can take notes, but you can't use them" I responded that there's no point in taking notes if you can't use them and when I said I would take notes whether they wanted to or not, the HCP asked if I wanted to terminate the session as they could not continue ...

All the reports I've seen elsewhere say that the ATOS HCP can object to being recorded, and if they do, then no recording can be made.

I think it also well established that ATOS encourage their HCPs to refuse their consent to any recording.

It is stated here as fact that if ATOS discover that a claimant is covertly recording a medical, the medical will be terminated. I presume that you will not be offered another medical and that you will be refused the right to appeal.

vhawk1951 wrote:

i don't know what the attitude of the DWP is; in my legal opinion it would be unlawful to prevent someone from taking audio notes unless some rule expressly for bids it. the general rue in law is if it's not expressly forbidden BY LAW it is allowed.

Unless some Human Rights lawyer, or charitable organisation is prepared to to take this to the appropriate European court, I do not think we will see the status of ATOS's powers. I would like to see this done, but have neither the money nor the stamina for that fight.

At the moment it appears that the DWP will back whatever ATOS says. And we can't fight the DWP.

The DWP never decide whether you have a right to appeal. It's the law that determines which decisions are appealable.

If a HCP terminates a medical because you have been found to be recording it, a DWP decision maker will have to make a decision in writing that you are no longer entitled to benefit, and you have an automatic right of appeal against the decision.

So is note taking also banned?

Gordon wrote:

Graham wrote:

So is note taking also banned?

You can take notes, but they'll make a legal statement about their validity, if used at a tribunal, etc.

Gordon

Sorry to sound dim. But who makes this statement? ATOS at the medical or the panel at the tribunal?