FAIR PROCESSING NOTICE FOR CLIENTS (AND THEIR REPRESENTATIVES) – MENTAL CAPACITY

OFH Care collect data and information about our clients and their representatives so that we provide a high quality service. We are the data controller for all data that we process.

This Fair Processing Notice explains what data we process, why we process it, our legal basis, how long we keep it and the rights of clients and their representatives

We will always make sure that our clients’ information is protected and treated securely. Any information that we process will be held in accordance with the UK General Data Protection Regulation (GDPR) and the Data Protection Act 2018.

Our contact details

OFH Care

Suite 202

The Legacy Centre

Hanworth Trading Estate

Hampton Road West

TW13 6DH

email: admin@ofhcare.co.uk

Tel: 0333 939 8032

What data do we process?

1. Browsing our website

If you browse our website, we may analyse information about how you use the website, and the content and pages that you interact with, in order to improve the relevance and interest of the content on it. We will only do this when you consent to our use of cookies.

Every time someone visits our web site, a log file is generated on our computer. The log file records the time and date of your visit, the files that were requested, your IP (Internet Protocol) address, the referrer URL (if provided) and the browser version. We collect this information to help us diagnose problems and administer our systems. This is a legitimate interest in ensuring that our website works properly. 

1. Mental capacity assessments 

In order to complete a mental capacity assessment for a client, we need to collect and process personal data. The following tells you what data we process for a referral and what data will be in a mental capacity assessment report.

Mental Capacity Assessment Referral form:

1. full name of client
2. date of birth of client
3. the decision being assessed
4. the date of the assessment
5. who requested the assessment
6. the diagnosis of the client
7. background information (e.g. Part A COP3 form, medical reports, therapy reports, a letter from the client’s GP, a referral form or information from another individual)
8. other relevant Information to the legal test.
9. any communication aids required by the client
10. history of risks (the client)
11. extent of the client’s assets (for property & affairs assessments, capacity to gift, testamentary capacity) 
12. client’s expenditure and day-to-day living costs (including care home costs if applicable)
13. client’s income, including benefits, pensions, etc
14. client’s dependents 
15. details of beneficiaries (for testamentary capacity and capacity to gift)
16. those excluded from the client’s will (for testamentary capacity) 
17. terms attached to a gift (for capacity to gift) 
18. details of the case being litigated (for capacity to litigate/capacity to conduct proceedings)
19. how proceedings will be funded (for capacity to litigate)
20. details of the claimant and defendant (for capacity to litigate)
21. existing health and medical conditions the client has (for health and welfare assessments, capacity to accept or decline medical treatment or rehabilitation)
22. medical treatment or rehabilitation the client is in receipt of 
23. implications of receiving or not receiving a specified medical treatment or rehabilitation
24. duration of proposed medical treatment or rehabilitation
25. risks associated with the specified medical treatment or rehabilitation
26. client’s care needs and how these are met
27. provider of care and support to the client
28. family tree details (for testamentary capacity) 
29. any additional Information relevant to the claim (e.g. barrister’s comments, final consequences of not making a claim, cost consequences of accepting/rejecting offer of settlement, possible alternative solutions, etc)

Assessment of Capacity Report (e.g. COP3, property & affairs assessment, health & welfare assessment, capacity to litigate, testamentary capacity, capacity to gift):

1. reference number
2. full name of the applicant/referrer
3. address of the applicant/referrer
4. telephone number of the applicant/referrer
5. email of the applicant/referrer
6. full name of the person being assessed
7. date of birth of the person being assessed
8. address of the person being assessed
9. telephone number of the person being assessed
10. gender of the person being assessed
11. the matter we have been asked to assess
12. the matter that the court is being asked to decide on
13. how the court order would benefit the person being assessed
14. relationship of the applicant and the person being assessed
15. any information regarding the person being assessed that would assist in the capacity decision
16. diagnosis of the person being assessed (any known impairment of mind or brain)
17. date of any diagnosis
18. opinion of the assessor of the capacity of the person being assessed
19. mental state examination
20. views of the person being assessed
21. prospects of future capacity of the person being assessed
22. the views of others on the capacity of the person being assessed
23. details of any interests of others in the matters of the person being assessed
24. recommendations for future care of the person being assessed

In addition to the above, we may conduct clinical interviews and take clinical appointment notes. 

We also process information in relation to the payment for our services, such as name, address, email and phone number of the party that we have a contract with. 

Our legal basis for processing personal data

By law, we need a legal basis for processing the personal data of a client. We process the data necessary for the assessment with the consent of the client and the referrer. We process the information necessary to obtain payment for our services because we have a contract.

We process personal data concerning the health of the person being assessed with the explicit consent of that person or, without their explicit consent, if he/she is physically or legally incapable of giving consent and the processing is in the vital interests of that person (essential for his/her life).

When a client is asked for their consent, information about the proposed assessment will be provided in a way that they can understand.  Where a client lacks mental capacity to make an informed decision, or give consent, we will act in accordance with the requirements of the Mental Capacity Act 2005 and associated Code of Practice.

In the case of any disputes, all personal data will be shared, as required, with our legal advisors and our insurers. This is because the processing is necessary for the establishment, exercise or defence of legal claims and we have a legitimate interest.

All personal data is stored securely on servers and in the cloud and this is a legitimate activity of a business. Any information received in print is stored securely in a locked filing cabinet, within a locked office building.

We have legal safeguarding obligations and should we become aware that our client or someone else is at risk of harm, neglect or abuse, we must inform the relevant authorities, such as the police or social services. We also have an obligation to inform the police and/or the courts if we become aware of any miscarriage of justice and we must inform the police of any acts of terrorism.

How long do we hold the personal data of our clients?

We retain all client records, including any complaint files, for eight years from the date of the last interaction with the client or their representative in relation to their case.

We retain all referrals/quotations for work that were not accepted for two years from the date of the proposal.

Due to HMRC requirements, we store any invoices or other financial data for seven years.

Who do we share client data with?

We share client data with:

• others at the client’s or their referrer’s request, such as solicitors or health and care professionals; 
• organisations we have a legal obligation to share information with i.e. for safeguarding;
• courts, police or other law enforcement agencies if we have to by law or court order; and
• our legal advisors and insurance providers, if necessary.

We  securely store data using cloud service providers.

Data transfers out of the UK

We do not transfer any personal data of clients out of the UK.

Rights of clients or their representative

Your rights

You have rights in respect of our processing of your personal data which are:

• To access your personal data and information about our processing of it.  You also have the right to request a copy of your personal data (but we will need to remove information about other people).
• To rectify incorrect personal data that we are processing.
• To request that we erase your personal data if:
  • we no longer need it; 
  • if we are processing your personal data by consent and you withdraw that consent; 
  • if we no longer have a legitimate ground to process your personal data; or
  • we are processing your personal data unlawfully

For example, we are unable to delete an assessment because the client does not like the outcome (our opinion) or the assessment does not suit their legal claim. 

• To object to our processing if it is by legitimate interest.

• To restrict our processing if it was by legitimate interest.
• To request that your personal data be transferred from us to another company if we were processing your data under a contract or with your consent and the processing is carried out automated means. 

If you want to exercise any of these rights, please contact us.

If you have a concern about the way we are collecting or using your personal data, please raise your concern with us in the first instance.  You may also contact the Information Commissioner’s Office at https://ico.org.uk/concerns/.