How to avoid catching a cold on medical complaint stories

People with a complaint about their treatment by a doctor or a hospital usually approach the press for coverage that will help their claim – especially if they’re asking for compensation.

There are a number of legal issues with these stories:

Defamation

1. Any story criticising a doctor, nurse, surgeon etc runs the risk of defaming them. Doctors have been advised to report critical stories to a lawyer or their professional association.

2. Reporters should make sure they are able to prove the truth of every allegation against identifiable individuals. And patients should only comment on TRUE FACTS.

3. Beware doing a story that just names a surgery, or a hospital department etc – but doesn’t name individuals. This could trigger a class libel action or multiple actions from staff.

4. Journalists can ask for statements from medical authorities. These are covered by qualified privilege and are safe to use.

5. Journalists can also submit written requests under the Freedom of Information Act to doctors surgeries, health trusts and other public authorities about procedures, guidelines, policies etc. The information may be privileged, depending what it is.

Journalists SHOULD NOT mention a patient’s name in an FOIA request – otherwise it will be rejected on the grounds of privacy.

6. Patients can assist journalists by giving their doctor written permission to comment on their treatment. This doesn’t oblige the doctor to comment, though – they may still choose not to do so.

7. Patients can assist journalists by using their rights under the Data Protection Act to get their medical notes from their GP or hospital and show them to a journalist.

The journalist can then use the facts in a story. But they should only use medical information with the patient’s consent.

Privacy

1. Patients’ medical details should not be published without their consent. If a patient approaches the journalist, then consent can be assumed, though it is wise to check exactly which details the person is willing to allow the journalist to use.

2. Beware approaches by a family member on a patient’s behalf. Make sure the patient has consented to information being divulged.

Contempt of Court

1. If a doctor faces criminal allegations, check if proceedings are active. However, a disciplinary hearing by the GMC cannot be prejudiced under the Contempt of Court Act.

2. If the allegations are of a sexual nature (eg indecent assault), remember patient anonymity. Journalists must get written consent from the patient – and also check the public interest issue with their editor. Under-16s should NOT usually be identified, even if their parents have given written consent.

The GMC has published guidance for doctors about patient confidentiality when dealing with the press. It reminds doctors not to comment when patients have complained to the media about their treatment etc, because:

a)     it can breach patient confidentiality.

b)     disputes should not be aired in the media.

Cleland Thom is a media law consultant and runs short e-courses in media law for journalists.

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