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Legal Unit FAQs

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?

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:

1. 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.
2. 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:

1. By an official complaint to the NHS Trust or social services department concerned.
2. 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?

Individuals are often concerned about their rights in relation to disclosing health information to an employer or prospective employer.

Mind has successfully campaigned to ban employers from using pre-employment health questionnaires. From October 2010 – when the Equality Act comes into force - employers will generally only be allowed to seek health information from job applicants after a job offer has been made. The Equality Act will replace the Disability Discrimination Acts and makes some changes to the law on discrimination.

Here are some key points to note:

1. If a question is asked about health, then we recommend answering the question honestly, but we recognise that this is very much a personal choice. Of course we hope that the changes in the law will discourage intrusive questions. If a job applicant or employee is qualified for the role and discloses a disability then the DDA (and in future the Equality Act) should protect against discrimination.
2. However, applicants should read these questions carefully and answer only what is asked – if unsure an applicant may want to delay answering questions about health and clarify what the employer wants to know.
3. It will often be the case that health information goes into a separate envelope which will only be read by an occupational health specialist.
4. If an individual gives a dishonest or misleading answer, it raises questions about trust. It is possible that an employer could take disciplinary action against an employee if it discovers that the employee did not disclose important information when this was asked for. An employer may face obstacles if taking disciplinary action against an employee but it is still possible that giving untruthful or misleading answers could result in dismissal.
5. Remember that disclosing a disability will make it easier to work with your employer in order to put reasonable adjustments in place.
6. From October 2010 employers will need to wait until after a job offer is made before asking most health questions. If an employer asks questions but then does not offer the applicant a job, the employer will need to show that this was not because of the applicant’s disability.
7. Employers will still be allowed to ask on application forms whether reasonable adjustments may be needed to assist the applicant at the interview stage. If an applicant does not need reasonable adjustments for interview then there is no need to answer – say ‘Not applicable’ or ‘No’.
8. Employers are also allowed to ask if an applicant will be able to do certain key parts of the job. Examples may include: if recruiting staff to work in a warehouse, asking whether an applicant can lift heavy objects (and also asking whether he or she would need reasonable adjustments to do so). We would not expect an employer to ask a question about whether an applicant can cope with stress, so if this is happening, please make sure to bring the enquiry to the attention of Mind's Legal Unit.
9. It will be unlawful for an employer to ask other health questions before an offer is made. The Equality and Human Rights Commission can take action against employers who do so.
10. Discrimination legislation protects an applicant who has a disability and the planned changes in the law will reinforce this. Applicants (and employees) should remember that the employer will be under a legal duty to make reasonable adjustments if an applicant or employee has a disability, so that a disabled person is not at a disadvantage compared to an applicant who is not disabled.
11. Sometimes when asking for health information, an application form also asks the applicant to give consent under the Access to Medical Reports Act 1988. In some cases, employees may be asked similar questions after employment begins. Please note that this does not permit an employer to access an applicant's medical records. It would allow an employer to ask the applicant’s doctor to provide a medical report.
12. In some very limited circumstances, a doctor may not wish his/her patient to see a report, but in the employment context, this is perhaps less likely to arise. (That aspect of the legislation is intended to protect the vulnerable employee from finding out something that his/her doctor may feel that the patient would not be able to deal with at a particular point in time).
13. Employers are only entitled to ask for medical information about matters relevant to whether the individual will be able to do the job and that the individual can ask the doctor to let them see the report before it is sent to the employer.
14. An individual can refuse to give permission for a medical report to be prepared and sent to the employer and also prevent disclosure once he/she has seen it, although of course this could cause practical difficulties.

For further information see Mind's legal briefing Disability discrimination under the Equality Act 2010.

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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.

1. Service users often find that they have not been given the services they think they need.
2. 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.communitylegaladvice.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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Mind Legal Unit, last updated February 2010