#DoNotConsent to a Doctor/GP being told your Work Capability Assessment decision… #StopTheLetter (ESA65B) Now

This post has been superseded by:

Getting GP ‘fit-notes’ after being found fit-for-work by a
Work Capability Assessment – #DoNotConsent

An archive of the original post is below, to show development of the above.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

[ Below updated 23/3/19, reflecting latest ESA50 form, new Universal Credit section 2.1 and section 3 on the importance of getting GP ‘fit notes’, after being found ‘fit for work’ by the DWP.

Your WCA outcome/determination is considered ‘special category data‘ [1] therefore the DWP requires your consent for it to be shared with your GP and any other Doctor.

If you #DoNotConsent to your GP or any other Doctor being told the outcome (determination) of your Work Capability Assessment (WCA), you can choose not to give consent in the first place or withdraw consent later on with these suggestions:

Option 1: When completing every ESA50 form – #DoNotConsent
Option 2: Writing to the DWP after every ESA50 form submitted and or WCA undertaken
Option 2.1: If you are claiming Universal Credit (UC) and completing the ESA50 form
3: If I am found ‘fit for work’ by the DWP and do not win a challenge against the decision, why should I keep asking for ‘fit notes’ from my GP/Doctor?
– Resources
– Notes and acknowledgements
– Background material

Option 1: When completing every ESA50 form – #DoNotConsent

On page 22 of the ESA50 form, under with the “Other information” box you can write:

I DO NOT agree to my doctor or any doctor treating me,
being informed about the Secretary of State’s
determination on– limited capability for work
– limited capability for work-related activity,
or– both

My “I DO NOT agree” decision is being exercised under my Data Protection Act (2018) and General Data Protection Regulation rights.

and you should then strike-through/write over/blank out the part of the “Declaration” on page 22 that says:

“I agree to my doctor or any doctor treating me,
being informed about the Secretary of State’s determination on
– limited capability for work
– limited capability for work-related activity,
or– both”

Cross it out or strikethrough it, so it looks like:

̶”̶I̶ ̶a̶g̶r̶e̶e̶ ̶t̶o̶ ̶m̶y̶ ̶d̶o̶c̶t̶o̶r̶ ̶o̶r̶ ̶a̶n̶y̶ ̶d̶o̶c̶t̶o̶r̶ ̶t̶r̶e̶a̶t̶i̶n̶g̶ ̶m̶e̶,̶b̶e̶i̶n̶g̶ ̶i̶n̶f̶o̶r̶m̶e̶d̶ ̶
a̶b̶o̶u̶t̶ ̶t̶h̶e̶ ̶S̶e̶c̶r̶e̶t̶a̶r̶y̶ ̶o̶f̶ ̶S̶t̶a̶t̶e̶’̶s̶d̶e̶t̶e̶r̶m̶i̶n̶a̶t̶i̶o̶n̶ ̶o̶n̶–̶
̶l̶i̶m̶i̶t̶e̶d̶ ̶c̶a̶p̶a̶b̶i̶l̶i̶t̶y̶ ̶f̶o̶r̶ ̶w̶o̶r̶k̶–̶
̶l̶i̶m̶i̶t̶e̶d̶ ̶c̶a̶p̶a̶b̶i̶l̶i̶t̶y̶ ̶f̶o̶r̶ ̶w̶o̶r̶k̶-̶r̶e̶l̶a̶t̶e̶d̶ ̶a̶c̶t̶i̶v̶i̶t̶y̶,̶
̶o̶r̶–̶ ̶b̶o̶t̶h̶”̶

Option 2: Writing to the DWP after every ESA50 form submitted and or WCA undertaken

See draft template letter for ideas and suggestions:
http://pastebin.com/kWZ6YNwY

“If a benefit claimant wishes to withdraw consent to inform a GP of the outcome of a WorkCapability Assessment they need to write to the Benefit Centre that deals with their benefit claim” https://www.whatdotheyknow.com/request/382955/response/938163/attach/html/3/236.pdf.html

Option 2.1: If you are claiming Universal Credit (UC) and completing the ESA50 form

If you are claiming UC you can also cut and paste any “I DO NOT agree” letter into your UC account journal.

3: If I am found ‘fit for work’ by the DWP and do not win a challenge against the decision, why should I keep asking for ‘fit notes’ from my GP/Doctor?

“They [DWP] have no place at all telling a doctor what they should or shouldn’t give a patient. It has nothing to do with them.

“When the Jobcentre starts to get involved in telling doctors about the health of their patients, that’s a really slippery slope.”
Source: Daily Record – ”Daughter’s fury after DWP tell doctors not to write sick note for dying father’ –  29 DEC 2016

If you are assessed as ‘fit for work’ at a Work Capability Assessment (WCA), you can ask for a Mandatory Reconsideration (MR) of the decision and if unsuccessful you can appeal to an Independent Tribunal.

Whilst you appeal your GP can continue to issue ‘fit notes’ for Employment Support Allowance (ESA) purposes. Your GP can also continue or restart issuing ‘fit notes’ because of a deterioration in a current medical condition or a new medical condition arises, which can also enable a new Employment Support Allowance claim to be made.

For an effective MR and Tribunal ‘fit notes’ need to continue being issued, this is why  stopping your GP/Doctor being informed of the determination of your Work Capability Assessment is very important, options 1, 2 and 2.1 should stop the DWP issuing the misleading work capability ESA65B letter to your GP/Doctor.

If you do not win at a tribunal and your GP has continued to issue ‘fit notes’ and does not know the outcome of any adverse WCA assessment, MR or Tribunal decision and you are consequently claiming Jobseekers Allowance or Universal Credit you can show your Jobcentre Work ‘Coach’ your ‘fit notes’. This should to inform the creation of your Claimant Commitment (CC) and the ‘Coach’ must ensure your CC includes ‘reasonable adjustments‘ that take account of your individual health and disability needs, that may be highlighted in your ongoing GP ‘fit notes’.

Note: This item [3.] covers suggestions that need independent advice, from likes of an Advice Agency or Law Centre before being acted upon.

Footnotes:

[1] What’s different about special category data?

You must still have a lawful basis for your processing under Article 6, in exactly the same way as for any other personal data. The difference is that you will also need to satisfy a specific condition under Article 9.

This is because special category data is more sensitive, and so needs more protection. For example, information about an individual’s:

  • race;
  • ethnic origin;
  • politics;
  • religion;
  • trade union membership;
  • genetics;
  • biometrics (where used for ID purposes);
  • health;
  • sex life; or
  • sexual orientation.

In particular, this type of data could create more significant risks to a person’s fundamental rights and freedoms. For example, by putting them at risk of unlawful discrimination.

https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/special-category-data/

– Resources

Data Protection Act (2018) – Chapte2 (10) Special categories of personal data. (‘Sensitive personal data’)
http://www.legislation.gov.uk/ukpga/2018/12/contents/enacted

.
 What conditions need to be met in respect of sensitive personal data?
The individual whom the sensitive personal data is about has given explicit consent to the processing.

https://ico.org.uk/for-organisations/guide-to-data-protection/conditions-for-processing/

– Notes and acknowledgements

Doing above should prevent the DWP issuing your GP or any other Doctor with it’s standard ESA65B letter which informs them of the WCA determination and asks them to consider not issuing further ‘fit-notes’ (medical certificates) and a summary of the Limited Capability for Work Assessment.

This post was devised after a Liverpool Echo video and newspaper report:

Netherley dad James Harrison DIES 10 months after DWP tell his GP not to write any more sick notes‘ (29 DEC 2016)  > Video: James Harrison’s furious daughter Abbie says Job Centre bosses interfered in the doctor-patient relationship  (Source: stop-pip.org)
abbie
“…he was sanctioned to death by the DWP”
+ ‘Daughter’s fury after DWP tell doctors not to write sick note for dying father‘ (29 DEC 2016), Jobcentre ‘secretly told dying man’s GP to stop giving him sick notes’ (29 Dec 2016) and ‘Jobcentre tells GP to stop issuing sick notes to patient assessed as ‘fit for work’ and he died‘ (December 2016). Together with responses to subsequent Freedom of Information Act requests,  [30/12/16 & 18/1/17]

and following discussions with @pennyanderson1, @AnitaBellows12 and @AmateurFOI

– Background material

The context of these comments take place against a background of a DH/DWP consultation on ‘fit-notes’ and the new ‘work and health programme’, which ends 17 February 2017.

DWP letter to GPs following ESA refusal (19 November 2010) http://www.rightsnet.org.uk/forums/viewthread/709/

Doctor Refusing to Provide Med Cert due to DWP Letter (15 December 2010) http://www.rightsnet.org.uk/forums/viewthread/824/

Where a client “fails” the WCA – does the DWP tell GPs not to issue a medical certificate? (7 July 2011) – https://www.whatdotheyknow.com/request/where_a_client_fails_the_wca_doe

 

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