I have had two recent subject access requests involving confidential letters to my clients which have been held in their clinical notes. The trust simply say that the patient gave them the letter. I have suggested that the patients did not have capacity to do this. Even if the patient did have capacity I think it is bad practice for the Trust to hold client letters on file. Any views?
I have often said to clients that I owe them a duty of confidentiality but they do not owe me one so, if it’s the client’s capacitous wish and choice to share the information contained in a confidential letter with anyone else I don’t think there’s anything that can be done about that. Also, if they wished to provide the actual letter to the hospital for inclusion in their medical record, that would be the client’s prerogative if they have capacity.
If they lack capacity then this decision should be subject to an in-effect best interests decision made by the person who needs to make this decision, here the person who decided to add it to the client’s medical records.
In some cases, both mental health and mental capacity cases, where a client has a very poor memory and needs constant reminders and reassurance, I have asked that certain letters be held on the ward file to be gone through again with the client if / when they need to know what’s happening. Clearly this is a judgement call on a case by case basis.
As an aside, if in future you expressly wrote on your letters words to the effect that the letter itself (i.e. the paper it is written on) remains the property of your firm and the information contained within cannot be used or disclosed to any other person other than the addressee without your firm’s express prior permission and then say something (that no one understands anyway) about the DPA and the GDPR then that may make the hospitals more reluctant to include your letters in their medical records!
Thanks Ian- that is helpful and is sort of where I had ended up thinking it through, although I remain concerned that the letters are not being freely offered by the client and may not even have reached the client at all! That is just my suspicious mind but I think I might put a confidentiality clause on just in case.
I had forgotten until tonight that this is mentioned in Law Society, ‘Practice note: Representation before mental health tribunals’ (12/12/19):
You should be aware that your correspondence, although addressed to the client, may find its way on to the client’s medical notes, thereby breaching solicitor/client confidentiality. It will sometimes be appropriate to visit the client rather than send correspondence by post. If you do so, you should read out the correspondence, offer the client a copy to keep and make a note on your file accordingly. If you find that your correspondence has been put into your client’s records, you should check with your client whether they object to this and if so raise it with staff on the ward.
Thanks Jonathan -that is really helpful. Difficult where the client has fluctuating capacity though. I still feel that clinical teams should have a blanket policy of not placing letters to clients on the clinical record.