26 May 2010

Benefits and Work has been enormously impressed by a copy of a letter sent by one of our members to Atos/DWP in relation to recording his medical.  It puts the onus firmly back on Atos/DWP to demonstrate that they have the legal right to prevent you recording your medical and allows you to ‘secretly’ record your medical whilst having told Atos/DWP that that is exactly what you are going to do.  It worked for our member and, whilst we can’t guarantee it will work for everyone, it’s definitely worth considering.

As regular readers will know, Atos/DWP place almost impossible to meet conditions on anyone who wishes to record their medical for any benefit.  They require you to provide a professional sound engineer and a properly calibrated tape machine that records two copies of the examination at the same time.  As one of our members discovered, even if you do all this they then simply tell you that none of their doctors is willing to be recorded.  (See: Getting permission to record your medical)

We recently published an article on the site suggesting that GPs are being advised that they probably have no right to prevent patients recording their consultations: GPs can’t stop patients recording consultations.

In response, we received an email from one of our members, Robert (who gave us permission to use his full-name but we’ve decided to stick to first names only).  He had decided to record his medical partly out of concern that the report by Atos might omit important details, but also because of “my own habit of actually saying something completely different to what I thought I was saying”.

Robert says that, having made the decision:

“I wrote to my MP who checked with various people and confirmed there shouldn't be a problem recording the interview, provided I told them first.”

When Robert received an appointment for a medical from Atos, he wrote to them advising that he was going to record the interview and received what he regarded as a standard reply requiring him to take a sound engineer with him and meet the other conditions listed above.

Robert’s response was to write the following letter:

"Dear Sir/Ms

I refer to your letter dated [insert date].

Thank you for providing me with the information you have.  I shall be using a digital recording device, together with a personal clip microphone which are appropriately EU certified by the manufacturer for their fitness for purpose.

I shall not be bringing a professional engineer nor shall I be having the equipment re-calibrated prior to the recording as this would be an unnecessary consideration for making a recoding for my personal use.

However if you wish to supply a professional recording environment for your own records, then you may do so.  You can regard this letter as my consent to make an audio recording of the examination if you wish to do this.  However this would be a commercial decision for you and any additional expenses incurred would be a matter between you and the DWP.   

I shall not be making further reference to the recording to the examining doctor. Therefore it is your responsibility to inform him/her as appropriate as their employer/contractor.

If you wish to provide further evidence that the requirements you refer to are a result of law rather than simply a policy matter of Atos/DWP, then please forward it to me and I’ll be happy to consider it.  Otherwise I shall not be corresponding on this matter further.

Kind regards”

We’ve reproduced the letter just as written by Robert, except that he offered to let them have a copy of the recording if they wanted one.  We’re concerned that this might be technically difficult for some of our members and might result in further unwanted correspondence, so we’ve left it out.

Robert tells us that he heard nothing more from them and so:  

“I went ahead and recorded it anyway.

“I have no idea whether or not they told the doctor I was recording it. I had the microphone clipped to my necklace which was more or less hidden by the collar on my t-shirt and the recorder was in my back pocket, with the wire running down my back.

“I have a good and clear recording of the whole event start to finish.”  

Robert says he is happy for other people to use his letter and we certainly think it is worth considering if you do intend to record your medical.  

There are also very strong grounds for anyone with memory or concentration problems arguing that they have a right to record their medical as a reasonable adjustment under the Disability Discrimination Act (DDA)  If you wish to add a paragraph relating to this to your letter, see our guide to ‘Getting Better Treatment from the DWP’ in the General section of the Members area.

It is possible that a medical will be brought to an end if you are found to be recording it and this may result in you not being awarded benefits. Whilst you may be able to overturn any such decision on appeal, it is clearly a risk you need to take into account

In addition, whilst there appears to be no legal reason to prevent you taping your medical, this should be for your own use only and any recording should not be published or played to anyone else. If you wish to use the recording as evidence at an appeal or as part of a complaint, the best procedure would be to provide a transcript of relevant parts of the recording.  The DWP or a tribunal can then ask for a copy of the recording if they wish.



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