NHS England appears to claim that tampering with medical records is not illegal (II). Or an apparent failure of organisational memory

Dr Minh Alexander retired consultant psychiatrist 23 April 2023

Yesterday I reported on an issue that arose from a current Employment Tribunal against NHS England, in the context of the weakness of UK whistleblowing law.

NHS England’s barrister questioned whether a disclosure about unauthorised changes to medical records was a “qualifying disclosure” under UK whistleblowing law.

This implied that such a disclosure did not fall under any of the following categories of qualifying disclosure:

“a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

In response to this assertion, I posited how tampering with medical records might fall under the categories of “a breach of a legal obligation”, “endangerment of an individual’s health or safety” or “a crime”.

In this additional post, I now share an additional example of whistleblowing about medical records tampering which was recognised by an NHS England commissioned investigation to be a breach of legal obligations.

The whistleblowing took place at Avon and Wiltshire Mental Health Partnership NHS Trust (AWP) in 2012 and was reported by Community Care and by the BBC:

Social workers blow whistle on NHS ‘falsifying’ patient records to hit targets, report shows

Avon and Wiltshire trust ‘falsified records’, report claims

In February 2012, a group of social workers reported to the Wiltshire Council that they believed that false entries had been made to electronic patient records (RiO) at AWP.

It was alleged that “a number of social workers employed by Wiltshire Council but working in Avon and Wiltshire Mental Health Partnership Trust (AWP) that they had been instructed to falsify or alter service user records and/or that records had been amended by NHS staff without the knowledge of council employed staff.”

The Council investigated and found that nearly thirty social workers based in either the adult community, liaison or later life services of AWP shared these concerns.

The South of England Strategic Health Authority ie. NHS England, commissioned an investigation into the irregularities on the 28 May 2012, under DH guidance (2005) concerning the conduct of independent inquiries into mental health services, replacing paragraphs 33- 36 in HSG(94) 27 (LASSL (94)4).

The investigation terms of reference included a review of any breach of legislative requirements, and impact on safety, care, treatment, welfare, safeguarding, and risk assessment and management of patients.

The investigation team reported that they found a top down senior management culture focussed on meeting financial targets, which in turn middle managers translated into falsification of patient records to meet targets and avoid financial penalties:

“4.2.3 Both NHS and social care staff described working in a bullying and intimidating environment with a relentless focus on achieving targets, avoiding breaches and ‘staying green’ (the scorecard) and threats of fixed penalties being applied to team budgets for breaching targets. We were shown an email from a care team administrator to a social worker that confirmed a £3000 fine would be applied to the team for breaching a referral to assessment target for a single patient. The email went onto confirm that despite the fact that the social worker had recorded multiple telephone contacts with the client, the administrator had added a face to face contact visit to the social workers RiO diary to avoid the breach.”

The investigation concluded that most of the records falsification did not result in direct patient harm but work done to input data and manage performance diverted away from face to face clinical care.

Records also did not always give an accurate clinical contact history.

This is potentially of relevance to clinical risk assessment.

The investigators considered that there was no intention to defraud commissioners, only to survive. But that might not be a persuasive defence in law.

Importantly, the investigators noted that the records falsification at AWP was likely in breach of legal obligations because under the Data Protection Act 1998:

1) False data breached the accuracy principle of data protection

2) Covertly processing fabricated data breached fair processing principles.

AWP had also not taken adequate systemic measures to safeguard against unauthorised and unlawful personal data processing.

“5.5 The organisation is unlikely to be processing information in accordance with the Data Protection Act. Three specific breaches should be considered. Firstly in relation to the recording of data about ‘carers’ without their express knowledge or agreement of the individual concerned which does not satisfy fair processing requirements. Secondly as patient records contain entries and information that is incorrect it is questionable whether the records meet the accuracy principle Thirdly AWP should consider whether it is in breach of the requirement to take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data.”

This is a copy of the investigation report into the records falsification, as disclosed by AWP via the What Do They Know FOI website, to a member of the public who identified themselves as a harmed patient:

Independent investigation report into the alleged falsification and/or alteration of service user records- Avon and Wiltshire Mental Health Partnership NHS Trust

Since the 2012 AWP investigation, the EU then UK General Data Protection Regulation (GDPR) has come into force.

Under GDPR, personal data about health issues is especially protected as “special category” data, and explicit consent is required for processing, save for a number of exceptional circumstances.

So in short, these are more arguments as to why a concern that is raised about tampering with medical records is likely to be a qualifying disclosure under UK whistleblowing law, the Public Interest Disclosure Act (PIDA).

Let us hope that NHS England will in the longer term recognise the importance of protecting disclosures about medical records tampering, and acknowledge (once more) that tampering breaches a number of legal obligations.

Let us also hope that NHS England remembers that its own investigation at Avon and Wiltshire upheld that whistleblowing disclosures about medical records tampering amounted to disclosures about breaches of legal obligations…….which are a category of “qualifying disclosures” under the Public Interest Disclosure Act.

A little truth and clarity are very welcome.