Can you demonstrate that the documentation is very important

Care documentation

What about clauses (in home contracts) that allow (unlimited) inspection of the care documentation in advance?

The Federal Constitutional Court (BVG) has attached great importance to the so-called "right to informational self-determination". In non-legal terms, it could be summed up as: “My data belong to me!” Judges therefore also forbade an insurance company to obtain a general absolution in advance for all possible inspections. (BVG decision of October 23, 2006, Az. 1 BvR 2027/02).

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Can the person concerned also make / receive copies of the care documentation?

Inspection literally only means that you can look at the care documentation where it is kept. In most cases, however, this is not enough to understand the content. Therefore, in the opinion of BIVA, the right of inspection also includes the right to make or receive copies of the documentation.

The Federal Data Protection Act also provides that the information
a) in writing and
b) has to be done free of charge.
This is certainly not a problem in those cases in which the care documentation can be transmitted in electronic form, since the effort for the facility is then low. However, this assumes that
1. the care documentation is available in file form,
2. the person concerned agrees to receive a file with the care documentation and that he / she can read this file and, if necessary, print it out, and
3. The secure transmission of the file is guaranteed.

As a rule, however, photocopies of the documentation will be available or made. The law does not clearly regulate who has to bear the costs. In contrast to the Federal Data Protection Act, according to the German Civil Code, the costs are borne by the person who requests the information (see § 811 BGB). Some state home laws already contain regulations in this regard.

Courts have occasionally ruled that the institutions have to keep copies, but not send them. In this respect, the dispatch would then in any case be at the expense of the person seeking information.

You should therefore agree in advance with the institution responsible for

a) how the inspection takes place,
b) where it takes place,
c) whether photos or other copies (files) have to be made,
d) whether and how these are then transmitted and
e) who bears the costs.

As a rule, the costs should not be high, as otherwise the person concerned will be deterred from his / her right of inspection. (Section 34 BSDG, for example, speaks of: "The fee may not exceed the costs directly attributable to the provision of information.") Good facilities should not charge any costs for this, at least as a goodwill gesture.

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Who "belongs" to the care documentation?

Since you pay for the care, you could be of the opinion that you would have paid for the care documentation at the same time, so you can take it home with you at any time.

However, it is not that simple. The care documentation is the working basis for the care staff. In this respect, a copy must always be available on site. The data in it does not “belong” to anyone, as no one is exclusively allowed to dispose of it, i.e. it is allowed to pass on and use it without restrictions. Several authorized persons are involved in the creation: the caregiver, the staff, doctors, etc. In this respect, there are several authorizations and multiple restrictions under data protection law.

“Belonging” can, however, refer to the data carriers on which the data is “embodied”, ie paper, electronic data carriers, etc. These are usually provided by the facility and are not paid for by the long-term care fund or the caregivers. In this respect, they belong to the institution. The caregivers, however, have a right of inspection and information and also the right to receive copies (against reimbursement of costs, see above).

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Who can I contact if I am refused access to the care documentation?

There are several places to turn to in this area. The following are generally provided for facilities:

  • the complaints office according to the respective state home laws and
  • the supervisory authority ("home supervision").

However, since the area of ​​data transfer is also affected, you can also contact the state data protection officer, who is often more familiar with this specific topic, especially if the documentation is EDP-supported.

Of course, BIVA is also the point of contact for all questions relating to residential and care facilities and assisted living.

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Does the right to inspect the care documentation also apply after the death of the person requiring care?

Yes, provided there is an effective power of attorney! As with the health care proxy, the right to inspect e.g. a relative can be granted beyond the death of the person concerned, e.g. to be able to investigate possible care errors.

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