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Stuart J
Stuart J, Solicitor
Category: Law
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Experience:  Senior Partner at Berkson Wallace
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My mother is in hospital and I am not happy with the way

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My mother is in hospital and I am not happy with the way things are going for various reasons. I have a health and welfare power of attorney which is joint and several with my brother. I have asked to see her notes from the beginning of the year for the GP and 2 Hospitals - the Hospital she is in will not let me see the notes on demand - and are saying I have to apply through a process and it is not the usual policy to release the notes until after discharge. Do I have the right to insist on seeing all the notes now? Also Can I insist on being present at any future appraisal for care needs which will be carried out by social services. My mother does not have dementia but is disorientated by pain medication and the pain itself/dehydration issues etc. Hope it's a straightforward answer. Sue
JA: Where are you? It matters because laws vary by location.
Customer: Oxfordshire - Mum in Abingdon and I am in Banbury
JA: What steps have you taken so far?
Customer: I have verbally asked and the GP abd the hospital she is in hsve copies of the power of attorney - I now have to put the requests in writing
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I cannot think of anything else

Hello. Thank you for the question. It is my pleasure to assist your with this today.

Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Have you made complaints using the hospital complaint procedure?

and is your brother in agreement?

Customer: replied 12 days ago.
Thank you - I will check later today - I have to sign on at work now as I am working from home today.
Customer: replied 12 days ago.
It's complex and we are not in a position wo make an official complaint - that is why we want to see the notes. My brother is in agreement that we need to see all the notes - so do we have a legal right to access the notes on demand/prior to discharge? Also do we have the right to insist on being present at any care assessments? I cannot discuss on the telephone at this time due to being in work today. Many thanks for your kind attention - Sue

You have probably seen a pop-up offering you the chance of a telephone call at an extra cost.  It is up to you whether you have a telephone call or not but do bear in mind that a 15-30 minute telephone call covers an awful lot of ground and you can get an awful lot of information in that time.  So you can ignore it or go ahead or go ahead later.  It’s your choice.

Meanwhile, we can carry on on here.

You have to make a formal application for the notes and there is a fee which is about GBP50 from memory.

If your mother has mental capacity, she would have to agree to you being present at any future appraisal.  From what you have said, she would need to agree although I’m sure that wouldn’t be a problem.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Customer: replied 11 days ago.
We understand there are fees and that we need to apply – however Can we insist on seeing the notes now - before she is discharged? If we must wait until after discharge to see the notes precious time could be lost and we need to make a very important decision as a family about her future.
I do not see why we cannot view the notes regarding medication, general nursing and physiotherapy which are never on display in the ward. They have offered to go through them with us but this is time consuming for them, difficult to take notes - the spellings of drug names or other medical terms are unfamiliar to us and we do not get a permanent hard copy to refer to. She has been in hospital 9 weeks on Monday and there have been various issues which have hampered her recovery and sent her off track making it very up and down. I am happy to pay a fee, produce ID and the certified copies of the power of attorney etc but we need to see the notes now and not after discharge when it may be too late.
The hospital is 35 miles away from where we live and we asked if she could be transferred to a place nearer to us to convalesce where we could visit more often and help motivate her to do her exercises so she gets strong enough to return home which is the ultimate goal but this has been refused/blocked - on the grounds that they do not think she would benefit from that and NHS policy will not allow a cottage hospital such a transfer.
The hospital have tried to initiate a discharge plan 3 weeks ago with the option of very expensive care in a nursing home (with no financial support from the NHS) or 1 room and quite undignified living in her own home - which will not work in her current condition. We managed to persuade them to give her more time as her recovery will be slow and in the first 4 weeks she continued to go downhill so at that time she had only actually had 2 weeks where she had improved enough to be able to focus on recovery. They did agree to this however the extra 2 weeks comes to an end on 20 September.
A huge part of it is motivation which is why we asked for a transfer nearer to us so we can visit every day instead of twice a week in the evenings/weekends being in full time work at a busy time of year it is impossible to go more often with the hospital so far away. The transfer has been refused twice on the basis that a cottage hospital offers the same level of care as a hub bed in a nursing home and they do not have access (due to policy) to transfer patients - then yesterday we found out that another patient in the same bay had apparently been transferred to one of these to finish her convalescence!
We think Mum lost the first 4 weeks of her stay while they experimented with pain control, suffered dehydration in the hot weather and ended up with a water infection and another unexplained infection. She finally began to improve after a night in the main acute hospital where they gave her intravenous antibiotics followed by a course of tablets - - she returned to the cottage hospital the next day to finish the course of tablets and that is when we noticed her starting to improve. Since then she has been up and down but definitely better than before the antibiotics.
There are limitations with pain management due to clashes with her other medication and she is restricted to opiates and opiate derivatives which disorientate and demotivate her. We are very unhappy that we have had to push for everything - since the first week they have been telling us she may never improve - she is 94 - and so on. Then in the next breath they say she does not warrant NHS support for her care. She has a crumbling spine, severe osteoarthritis and osteoporosis. She is in constant pain and the painkillers affect her mind. At the present time she does not have the strength to stand up so is not able to transfer from bed to chair to commode and has been unable to use the stairlift at home since early July - we had to fight to get her into hospital after a week of her having had a fall every day for 5 days and have been fighting to get various things addressed ever since. The longer she is left without motivation to do any exercises (which on a bad pain day she is refusing) the weaker she gets. We would like a second opinion - possibly from outside Oxfordshire and we will need the notes to be able to decide what to do next.
Customer: replied 11 days ago.
Nothing more to add at this stage - we just need to know who to write to for notes from John Radcliffe Acute Hospital, Abingdon Cottage Hospital and her GP practice GP/Nurse/Paramedics

You can insist all you like but if they won’t let you have them, your only alternative is a Subject access request which I have mentioned earlier.  They don’t comply with that then it’s an information Commissioner complaint and an application to court to compel them to let you have the notes and an application for the legal costs against them.

I appreciate you think that they were experimenting with pain control and I am not a great defender of the NHS but they do have to try to see what works and what doesn’t and whilst it may seem like experimenting, it is a process of elimination as to what works and what doesn’t.

I would write to the Complaints Department at the hospital (they will give you a copy of their complaints procedure on demand) and the senior partner at the GP practice

Customer: replied 11 days ago.
HI - We don't mind them experimenting with pain relief - the hospital is the place to do it - where she is safe with 24 hour support - as she was clearly not safe at home. The experiments take time and some of the drugs have disorientated her to such an extent she has not been able to focus on anything or apply herself to anything so that has hampered her physiotherapy. It's like she is drunk and in a blackout so cannot possible function mind or body. We think they find it easier to write her off at 94 and discharge her into a hospital set up at home - with minimal support and no dignity or very expensive nursing home care and move on to the next case so that is why we asked for her to have a bit more time to improve which will be a very slow process - too slow for them I fear. The flat refusal to transfer her nearer to where we live so we can visit daily to help motivate her is also a problem for us which is why we are thinking of seeking a second opinion. We understand we can refuse for her to be sent home but as she is not responding to treatment and she has made references to rough handling - so a possible personality clash with one of the physios we think she needs to be sent elsewhere to continue her recovery process - with a more patient and sympathetic approach to her needs and a quieter environment at night so a better quality of sleep. We did contact her local GP practice and explained our concerns and they advised we speak to the head consultant which we have done - that was in the seventh week when it was agreed they would continue another two weeks and review again. She is now better than she was on admission but still unable to stand unaided for more than a few seconds - we think she would fare better in the rehab bed in a nursing home and they will not allow this. Ironically we have now found out that when she was in the John Radcliffe she could have been allocated a hub bed for rehab in a nursing home but they discharged her without doing that twice. The first time they sent her back home after a fall in early July - without our full consent - she was taken home and left there alone at 4pm on a Friday afternoon. We were not notified of the time to be able to go and meet her and neither were her home carers - we were not allowed to visit the A&E due to COVID restrictions so unable to speak face to face and unable to get through on the telephone to voice our objections and request she was kept in hospital/somewhere suitable until she was able to recover more. The second time she was sent back to Abingdon hospital who kept the bed open for 24 hours when they sent her to the JR for a CT scan on 5 August as she had gone so far downhill they thought she'd had a mild stroke. That was when the JR treated her with antibiotics and it was after that she finally began to show signs of improvement. We could easily organise for her to go private but once we take her away from the NHS system we will have possibly cut their support off. Although 94 she is a taxpayer so not a burden on society. We think they are looking at her age and her purse over her rights and her needs. We do not really want to go down the complaint route - we would rather have a more positive outcome through careful negotiation but not really sure how hard we can push this as they have already refused our requests for a transfer twice and are clearly keen to have her discharged as soon as possible.
Customer: replied 11 days ago.
Another point the hospital made to me yesterday was as she will be self funding there is no need to involve social services - however we think their input may be helpful and the hospital would want things to move quickly without any delay that Social Services input may cause - would you agree that we should seek input from social services? Plus one final question - if we go outside Oxfordshire for the second opinion - or for any nursing care does that complicate matters?

Thank you for the extra information.  In my opinion it doesn’t matter where the opinion comes from.

Customer: replied 10 days ago.
Thank you - Do we have the right to insist the NHS gives her more time to recover at the end of this extension of 2 weeks? And to nominate where she should go to continue her recovery or specify who we should request the second opinion from. The hospital have a copy of the LPA for health and Welfare.

You can insist all you like, but if they don’t do it your only remedy, if it goes wrong is a negligence claim although you could always threaten that at the outset, “if you don’t do this that and the other, and she deteriorates, we will be bringing a negligence claim”.

You cannot nominate where she goes for recovery unless you are paying privately.

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Customer: replied 8 days ago.
Ok - Many thanks for your time - at least we know what we can do and where we stand.