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Legal Unit FAQs
Compiled by Mind's Legal Unit, click on the question to go to the answer, or scroll down to read them all.
My psychiatrist wants me to accept treatment which I don't like and which I don't think helps me. Do I have to comply?
Do I have the right to see my medical or social services records? My medical records are inaccurate - how can I correct them?
Am I entitled to change my doctor or get a second opinion?
I think I have been wrongly diagnosed or treated by a doctor or nurse. Can I sue him or her?
I have applied for a job. Do I have to tell them about my mental health history?
I am not happy with the services I am receiving in the community. How can I challenge my care plan?
Can I change my nearest relative?
My psychiatrist wants me to accept treatment which I don't like and which I don't think helps me. Do I have to comply?
If you are detained under the main sections of the Mental Health Act 1983 (including sections 2, 3, 37, 47 and 48) you can be forced to take medication for mental disorder, whether you like it or not. It is not normally possible to challenge this treatment. (If you can prove that the circumstances of your treatment are seriously harmful to you, take legal advice on the application of the Human Rights Act, but this will only rarely apply.)
If you are not under section you have the same right to refuse treatment for a mental disorder as you would have if it was for a physical health problem. However, if your doctor thinks you will get worse as a result of not taking it, or will put yourself or someone else at risk, he or she may use your refusal as a reason for having you admitted to hospital. You may therefore need to show that you are managing well without the treatment in question.
If you are not well enough to make a clear choice, doctors have limited power to give you the treatment which they believe is 'necessary'. This should be limited to dealing with your immediate health needs and must not be used to justify long-term treatment to which you are objecting.
For further information see Mind's Rights Guide 3, Consent to treatment.
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Do I have the right to see my medical or social services records?
Under the Data Protection Act 1998 you have the right to see all information ('data') which has been recorded about you if it is in a readily accessible system such as a personal file. You are also entitled to receive copies of all the data held on you if you pay the relevant copying charge (currently £10 for information held on computer and up to £50 for information in written form).
However, there are two limits to your right of access:
- If your file contains information about, or given by, someone else who is not involved in your care, the organisation concerned must ask them if they agree to you seeing it. If they do not agree the organisation is entitled to withhold this 'third party information' from you, although they are allowed to let you see it if they think it is justified in the circumstances.
- The organisation concerned can withhold any information which is 'likely to cause serious harm' to you or to anyone else. Health records cannot be disclosed until a doctor (usually someone who has been concerned with your treatment) has considered whether this applies in your case. Social work records can be withheld by a social services professional.
You can challenge a decision to withhold your records in two ways:
- By an official complaint to the NHS Trust or social services department concerned.
- By referring the decision to the Information Commissioner, who is the Government-appointed official who monitors the Data Protection Act. The Information Commissioner's office has a public helpline: 01625 54 57 45. You can also visit their website at www.ico.gov.uk.
For further information see Mind's legal briefing Confidentiality and data protection.
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My medical records are inaccurate - how can I correct them?
Under the Data Protection Act 1998 you have the right to ensure that ‘data’ (i.e. information) held on you are factually accurate. If you can prove that the data are inaccurate you should make a formal request to the Trust which holds your records for them to be 'rectified'. If the Trust does not do so, you can make a formal complaint under the NHS complaints system. If the Trust is unreasonable you also have the right to take the matter to court, although at present you have to show that the inaccuracy is harmful to you in some way. (The same applies if you want to challenge inaccuracies in social work records.)
If the record is factually correct but you dispute a doctor's opinion, you have no legal right to get the record changed or deleted. The best you can normally do is to get a note added to your record to show that the opinion is disputed. It will help your argument if you get a more recent medical report which agrees with you and disagrees with the doctor's opinion concerned. Even then the Trust concerned will not normally agree to delete the earlier reference but will insert a cross-reference to the later report.
For further information contact the office of the Information Commissioner (see above). See also Mind's legal briefing Confidentiality and data protection.
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Am I entitled to change my doctor or get a second opinion?
Under the National Health Service everyone has the right to have a GP and can change their GP at any time - in theory. You simply register with a new GP. However, the new GP can either accept or refuse you, depending on whether there is space on his or her list. People with mental health problems often report that they have been unable to find a GP who will take them on.
Most GP practices in England are now organised into Primary Care Trusts (PCTs), while in Wales they are usually part of Local Health Boards (LHBs). For help in getting on to the list of a GP surgery in your area, contact your local PCT or LHB. The final decision is taken by the GP practice concerned. They must not turn you down for unfair or discriminatory reasons, though the most common reason for refusal is that the list of patients is full.
If you cannot find any GP practice within reasonable travelling distance which is willing to take you on, the Strategic Health Authority for your area has a duty to make sure that you have some way of obtaining medical services.
You have no legal right under the NHS to change your psychiatrist. Your present psychiatrist may agree to transfer you to another doctor. Psychiatrists will not usually agree to a transfer simply because you do not like the treatment he or she is prescribing, but they should consider a transfer if the relationship between you has completely broken down.
Under the NHS you have no legal right to insist on a second opinion. Again, this requires your existing doctor - GP or consultant - to agree to refer you to someone else. At present there is a great shortage of consultant psychiatrists so getting referred to someone else may not be easy to achieve. If you have the financial resources you may need to consider paying privately for a second opinion.
If you are taking legal proceedings (appealing to a tribunal, suing a hospital etc) and are publicly funded ('legal aid'), your solicitor may be able to get funding for an independent medical report on you. This will only be available if the report is necessary to help you present your case effectively.
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I think I have been wrongly diagnosed or treated by a doctor or nurse. Can I sue him or her?
See Mind's legal briefing Clinical negligence.
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I have applied for a job. Do I have to tell them about my mental health history?
If an employer does not ask you about your previous health history you are under no legal duty to tell them anything. If however they do ask you - either verbally during interview or (more commonly) by asking you to fill in a medical form - giving an untruthful answer can lead to problems. In particular, if you are later found to have lied to your employers or deliberately misled them it is likely to be treated as 'gross misconduct' which can justify dismissal from the job. You should therefore consider carefully how you answer this question.
It is worth remembering that an employer normally wants to know whether there is anything in your health history which would make you les capable of doing the job concerned. If you were unwell some time ago but have now made a full recovery, or if you have been managing your condition successfully for some time, you could point this out and permit the employer to check the situation with your doctor.
The Disability Discrimination Act 1995 ('DDA') gives legal protection to people whose mental health problems count as a 'disability' under the Act. To qualify your condition must:
- Have lasted for twelve months or more, or (if continuing) be likely to last this long, or be 'recurrent'. A past illness still counts if it meets these criteria; and
- Have (or have had) a 'substantial adverse effect' on your day to day activities such as your speech, memory, understanding, concentration etc. 'Substantial' means more than trivial. If medication or other treatment helps you manage the symptoms you should consider how your condition would be without this treatment.
If you are 'disabled' under the DDA you have two legal protections, both in the recruitment process and if you get the job. First, an employer may not treat you less favourably than anyone else, for a reason connected with your disability, unless this can be justified. Direct discrimination ie treating you less favourably simply because you have a disability and others do not, can never be justified.
Second, if the arrangements for recruitment or employment place a disabled person at a substantial disadvantage compared with people who do not have the particular disability, the employer must make such adjustments as are reasonable to overcome the problem. Note that the protections under the DDA will normally only come into effect if the employer knows, or could reasonably be expected to know, that you are disabled. If therefore you want your symptoms to be taken into account by an employer you would need to tell him or her something about your mental health problems.
For further information see Mind's legal briefing Disability discrimination.
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I am not happy with the services I am receiving in the community. How can I challenge my care plan?
Under the 'Care Programme Approach' (CPA), everyone who has been in contact with mental health services is supposed to have a care plan setting out the medical and other support which he or she needs. (Mind is aware that some people still have no care plan, though the situation is supposed to be improving.) The plan should be discussed and agreed with the service user concerned. However, two problems often arise.
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Service users often find that they have not been given the services they think they need.
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Some service users would prefer not to receive services at all, but are told that if they do not do so they risk being taken into hospital.
(1) Unfortunately, a service user's assessment of his or her own needs may not correspond to the assessment of the health professionals. Community care law permits local authorities to have 'eligibility criteria' for their services; once someone's most serious needs have been met, additional services do not have to be provided if funding is not available for them. For example, many service users would like to be given psychotherapy on the NHS but this is rarely seen as being a vital service.
You can challenge decisions about the services provided to you through the complaints systems operated by the NHS (for health care) or your local authority (social service care). The Trust or council concerned must have a complaints manager who can tell you how to complain.
There is limited scope for taking legal action with regard to a care plan. This will only normally be available if the failure to provide a service puts someone so obviously at risk that it cannot be justified. In such serious cases, get advice as soon as possible from a lawyer specialising in community care. The Community Legal Service website at www.clsdirect.org.uk lists community care law specialists.
(2) As with any other treatment, if you are not under a 'section' of the Mental Health Act or in 'guardianship' you cannot be forced to accept services in the community if you do not want them. However, if you refuse the services which the health professionals believe you need they are likely to be concerned that your health will deteriorate. This will make it more likely that they will consider admitting you to hospital. You will therefore need to show that you understand why the services are being offered but that you are managing your health effectively without them.
For further information see Mind’s Rights Guide 6: Community care and aftercare.
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Can I change my nearest relative?
The 'nearest relative*' has a significant role under the Mental Health Act 1983 ('the Act'). He or she can apply for someone to be detained in hospital ('sectioned') or taken into guardianship, although this power is not often used. More importantly, he or she can object to someone being detained for treatment under section 3 or apply for the patient to be discharged from section on 72 hours' notice. This means that the identity of the nearest relative is very important to a detained patient.
*(NB 'Nearest relative' is often confused with 'next of kin'. Someone's next of kin is primarily concerned with making decisions after they have died, and has no role in the sectioning process.)
The Act does not allow a patient to choose his or her nearest relative. Instead the person who takes this role is decided according to a list in section 26, starting with the patient's spouse or partner, then parent, then adult child, and so on through the various family relationships.
Service users are often unhappy with the person who is designated as their nearest relative. In some cases they believe that the person in that role significantly contributed to their mental health problems. Section 29 of the Act allows other relatives and even social workers to apply to court to change an unsatisfactory nearest relative; the only person who cannot apply is the patient.
This means that, as matters stand, a service user cannot change his or her nearest relative, however unsuitable the person may be. In 2000 the European Court of Human Rights stated that this inflexibility violated Article 8 of the European Convention on Human Rights (the right to respect for one's private and family life). This was confirmed in 2003 under the English Human Rights Act. At time of writing (August 2006) the Government is planning to change the Mental Health Act to allow a patient to displace his or her nearest relative, but this is unlikely to happen until 2007 at the earliest. For the latest news on this and the other proposed changes, see the Policy section of Mind’s website.
For further information see the legal briefing Rights and powers of the nearest relative under the Mental Health Act 1983.
Mind Legal Unit, last updated August 2006
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