Using mental health records with patient's consent in UK

Tricky one this. Not because understanding the law is complicated, but because anyone you name or identify can do anything they want to in response.

I'll give you the devil's advocate response, not the one based on natural justice.

The notes will contain information gathered and recorded by the medical staff, and what's termed "third party information" In a perfect world, any person who contributed to the notes should have been asked for consent for their part of the information to be shared. Anyone who was an employee of the hospital is sort of covered if the hospital gave consent, but if just one sentence says that "The next door neighbour told us that Mrs Smith's favourite colour is blue" then the next door neighbour should have been asked for consent before that part of the note was shared. I'm giving a deliberately bland example. The notes could just as easily say that the neighbour called child protection services, or that a relative disclosed that they had suffered depression secondary to childhood abuse. That person might feel they have been injured by both the hospital and the "publisher" and seek damages.

Anyone named in the notes who thinks they are identified and injured by anything you publish could decide to act against you. They may not win but they could decide to act.

aquatico said:

As far as I know there is nothing to stop someone from publishing their own medical records if they want to

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Correct. the patient cannot breach their own confidentiality, but they are not protected from lawsuits brought by anyone over third party information being put into the public domain.

aquatico said:

Would it be considered defamatory to expose the mistakes they made if they were identified?

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Key word here is mistakes. If you accuse someone of making a mistake, you may need to be able to prove it was a mistake...and the benchmark would be against practices at the time, not today's standards. If they took action against you, their defence would only need to be that they acted appropriately for the time and the duty of care they had.

I know from your previous posts that one part of your story relates to relatives lying to doctors. There is no burden of responsibility on a doctor to investigate the history they are given for inaccuracies or lies. They might choose to verify it if it felt wrong, but a doctor who is told different things by two different people is not expected to spend their evenings being a detective. The fact that they could have done something is not the same as having a duty to do it.

A doctor acting correctly based on a lie they were told is not the same as a doctor making a mistake, and a reasonable lawyer could use that as part of a lawsuit. When your story very clearly paints relatives as lying and untrustworthy...and that their actions were deliberately meant to decieve the doctors, well, it would be easy enough for a doctor to object to being painted in a poor light in those circumstances.

If you remove it one step further. Dr Smith takes the history and believes the lie, then Dr Jones acts on the information reported as true by Dr Smith.....well, Dr Jones may well react to you painting him in a negative light. In court, while sueing you, his case will be that HE didn't make a mistake, not that mistakes weren't made.

aquatico said:

Or would they be unable to respond at all without breaching their own rules of confidentiality towards the patient.

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They can respond....and if your friend feels like it she can then sue them for breaching confidentiality...... but you have to ask yourself if a court would find fault in a doctor using information you've already put into the public domain (with the patient's consent) to defend their reputation? I think it would be very hard to argue that there was any confidentiality left to breach.


I think this is a good example of why lawsuits can become so complex with suits and countersuits.

If you did get sued, it could be by any of a number of people (even your friend's relatives) and you'd need to demonstrate blame on their part to defend yourself. I think you'd need more evidence than the notes would provide you with, and with absolute respect to your friend, you'd have to trust that she isn't making any errors of her own in telling her story.

So, my very short answer is lawsuits are possible and welcome to the minefield.

Craig

Wiskel I think you have given an excellent answer.

aquatico have you a written agreement with the ex-mental patient that covers all eventualities? If s/he does not like the way you deal with the material can s/he stop you from publishing? Will there be some form of financial compensation for your work should that happen?

talk to the appropriate lawyer.

I think copyright on medical notes is going to be the last of your problems here. If a doctor had done something wrong, the very last thing they'd want to do is bring the matter to court, where the media would probably be pretty interested and everything is reportable. To want to do it over copyright breach is unlikely.

Libel, however, is a different matter. Wiskel's covered most of it, but there's one thing to emphasise: libel works the other way round to the rest of the legal system. If someone says you've libelled them, you have to prove you haven't. That means you can't speculate about motives at all, and you'll need documents for every single statement you make. The UK libel system hates defendents.

This is part of the reason I feel sorry for doctors - they are very limited in how they can defend themselves.

If I say "Doctor Jones stuffed up when diagnosing me", it is difficult for the doctor to defend herself without violating confidentiality. Even if *I* have revealed some confidential information, it doesn't give the doctor free range to defend themselves by revealing more information.

Doctors stuff up, of course. But it is tricky.

Another issue would be that you are adding layers of interpretation, even if that interpretation is based on the original documents. For example, you say that she 'never used her first name much', but then say 'they didn't bother to include her first name on their records'.

Is that so unreasonable? If the name she used was 'Mary Thomas', it might be sensible to list her as 'Mary Thomas' .. even if she might be legally 'Jane Mary Thomas'. In fact, this might explain why the reference number was changed shortly after this ... they might have had two sets of files, one under 'Mary Thomas' and one under 'Jane Mary Thomas' ... so simply combined them under the name she answers to.

So you might be portraying their simple (but non-optimal) way of dealing with patient files as some kind of negligence .

I'm sure there are millions of cases where doctors felt that a condition was imagined by the patient and it turned out to be real. Some are trivial (Yes - my arm was actually broken ... I wasn't just a wimp who couldn't handle the pain of a minor sprain) and others are heartbreaking.

A good rule of thumb, though, is to avoid talking about MOTIVES.

So:

Safe fact: The reference number on a medical file was ammended in the 1970s.

Unsafe speculation: "Her reference number was changed, which does seem to be a bit more than an administrative error and could be construed as negligence"

It might seem like safe speculation, because you are carefully avoiding saying "I believe it is likely to be negligence" ... but is it ?

Fundamentally to tell a story you must include certain pieces of information and choose to not include others.

This is akin to me saying "A person known as 'aquatico' or 'Alex' did not provide an alibi for the night of the murder, which could be construed as suspicious". The basic event is true (there are probably dozens of murders neither of us have an alibi for!) but I'd be clearly trying to imply a link.

Arguing that I didn't actually SAY there was a link between you and the murder might buy me a little bit of wiggle room, but doesn't put me totally in the clear!

However, these kinds of books do get published, so the problem is solvable. I would find a similar book in the UK and see how they handled it.

Good luck!

Mac

Devil's advocate time again. You need to know where your potential defence is weak to help you make your decision.

aquatico said:

Hi Craig and Shakesbear and thanks for responding.

It certainly does seem like a potential minefield but yes, I do have the ex-patient's written consent to use any of the material she has given me This only protects you from her sueing you for breach of confidentiality. Anyone else can still sue you, and your friend could still sue you for misrepresentation if she doesn't like how you interpret the information., which does seem to indicate that some serious mistakes were made, not only thirty years ago but also relatively recently. For instance, they didn't bother to include her first name on their records or the legal documents either when she was sectioned Not relevant to whether the reason for sectioning was valid or not but one of those "administrative loopholes" that prove an error but that don't constitute a serious error., which altered her identity, and her hospital reference number was also changed shortly after that, which does seem to be a bit more than an administrative error and could be construed as negligence The court gets to decide that, not you. Your decision is about opening yourself up to a lawsuit, not deciding if you want to sue the hospital. You have to decide if you're safe from libel., even thirty years ago. She never used her first name much, except on official documents, as they should have been aware because they had her chequebook and her driver's licence, but without it she couldn't be traced through any of the usual channels Not a doctor's job to try to trace her. The fact they could does not mean they had a duty to. It also does look as if there was a deliberate effort to convince her family that she wasn't raped at all and must have imagined it, unless of course she asked for it, which is a typical symptom of a "sick mind", apparently.

I also have documentary evidence and statements from her friends and some relatives as well as access to her late father's diaries All of which would be more helpful building a case against the hospital than defending yourself from libel. So everything she claims can be verified by public records and independent witnesses. The facts sure, but libel will be based on opinions and percieved injury. Mac H's post says it all.

The biggest problem I have with this story is that it's almost impossible to disguise her stepmother's family without rewriting history because of the public figures involved in the circles this lady grew up in. So many details would have to be changed if it was written as fiction that it would probably defeat the object of the whole exercise, which is to establish that there is nothing wrong with her mind or her memory I don't think she cares if anyone sues her or not and has agreed to take full responsibility for anything as
long as she has editorial control. Hmmm. If i was the person who was bringing the lawsuit, I'm not sure that would stop me sueing you. Maybe I'd sue you both and let the court decide who had injured me most. Even if you win I presume you'd have spent a fair bit of money on your defence lawyer. I'm also assuming that she is a little older than you. Maybe the lawsuit will come after she's passed on.

So it's really an either or situation, to use real names throughout or change all of them, and invent an alternative but equally posh background which might have been considered just as implausible by consultant psychiatrists and clinical psychologists on an acute ward in an NHS mental hospital somewhere in London thirty years ago and could still be considered so by any clinician who'd rather depend on their colleagues opinions than accept the word of anyone with such a long history of mental illness who "doesn't have any insight at all" and is obviously still "obsessed with perceived injustice".

It would be a lot quicker and easier to write the real story but I haven't actually agreed to write anything yet. I just wanted to know the legal position before I decided one way or the other.

Alex

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I wish you nothing but luck with the story, and if anyone has suffered an injustice then they deserve to have their demons put to rest. I'm deliberately picking holes in your defences becuase this story shouldn't end with both you and the lady in question losing money in court and you're being sensible to ask what you might be up against.

Craig

You need a GOOD lawyer who specializes in UK law, especially the slander and libel laws.

Don't ask us.

Aquatico - I should have said, "Don't rely on advice from writers all over the world when there is a strong possibility of ending up in serious legal trouble in your country if you write about what you just asked a question about."

A respected science writer is being sued for libel in the UK because he used the phrase "bogus treatments" in an article about chiropracters.
http://www.dailymail.co.uk/health/a...practors-saying-unproven-treatment-bogus.html