Can Comments Made in Counselling Be Added to Medical Record?

Q.

I've discovered a 'throwaway' comment on a counselling report in my medical records that indicates a serious but entirely non-existent mental illness. In another counselling report, and throughout my 'secondary' notes, there are highly descriptive 'essays' on exactly what I said - sometimes down to the smallest detail, with numerous inaccuracies. I thought I was in an entirely confidential environment when undertaking counselling following family bereavements.

I am absolutely horrified that what I said has been disclosed to a third party and written in my medical records. Had I been given the opportunity to review the documents, I would have immediately pointed out the error. The NHS complaints procedure has been a waste of time and I have a feeling that this will 'go legal', incurring expense that I can ill afford. Do you have any guidance on how I can get these comments removed from my medical records?

A.

You may be able to make a complaint to the Information Commissioner about a breach of the Data Protection Act in disclosing sensitive data without your permission; if the counsellor did not tell you he or she would release the information to your GP. You can also ask for the information to be corrected.

The Data Protection Act classes sensitive data as information about one or more of the following:

• Your racial or ethnic origin
• Political opinions and religious beliefs
• Whether you belong to a trade union
• Any mental or physical health condition
• Your sex life
• Whether you have committed a criminal offence
• If there are any court proceedings against you.

There are certain circumstances that allow sensitive data to be processed, one of these being that you have given your explicit consent. ‘Processing’ according to the Data Protection Act covers both the recording and the disclosing of information, and so although you would have given the counsellor permission to make notes of what was discussed during your sessions, you did not agree to the information being disclosed to a third party.

You are entitled to object to your information being processed if it’s likely that doing so could cause you harm or distress, and if you feel that you have suffered damages due to any unauthorised disclosure of sensitive information, you could be entitled to compensation. You can’t claim for damages if you have suffered just from distress, unless the data was used in journalism of some kind.

The counsellor may be able to defend their actions if they can prove that they took reasonable care to comply with the Data Protection Act.

Medical Opinion

The Data Protection Act applies differently to a ‘professional opinion’ although the information must still be accurate and up to date. If anything on your record is simply the opinion of the counsellor, the records should state that. It may help to read the ICO information factsheet: http://tinyurl.com

Rights of Access

You have a right to access any sensitive data held on you – all you need to do is write a letter to the data controller (person you believe holds that information) and ask them to disclose the information that they hold. Make it clear that you are making a subject access request under the Data Protection Act. Give as much detail as possible about the information you believe they hold – dates, times, and anything else that will help them to comply. They may charge you but the fee should not be more than £10 if the notes are held electronically. They must respond within 40 days.

The Information Commissioner

You can ask the ICO to make a decision on whether the counsellor breached the Data Protection Act, but the ICO cannot make them pay any compensation, even if they find in your favour. You would need to go to court for that – but you would have the ICO decision as evidence.

For advice on whether to take the issue up with the ICO and pursue compensation, call the helpline on: 08456 30 60 60 or 01625 54 57 45 (available from 9 am to 5 pm, Monday to Friday.)

Correcting Information on Your Records

To have information changed or removed, you need to write to your GP explaining exactly where the information the counsellor has provided is inaccurate, and ask them to change/delete the incorrect parts. Make sure that you keep a copy of the letter. If they haven’t responded to say that they have changed the records within 28 days, you can make a complaint to the ICO under the Data Protection Act.