Medico-legal can be a difficult area to navigate, but if you're running a private psychology practice then there may be some things you need to know.
In this medico-legal guide for psychologists, we’ll be discussing how to handle legal requests for client records whilst adhering to data privacy responsibilities, and ensuring you stay compliant with GDPR (General Data Protection Regulations).
As a psychologist, protecting the privacy of your clients will be paramount and it’s essential you comply with the UK Data Protection Act 2018 and GDPR when handling sensitive data. You’ll likely be familiar with the rules around consent, transparency and data security, but also those special factors relating to health records including heightened confidentiality, retention periods and security of therapy notes. For more on these data protection principles, please refer to my blog - Data Privacy, GDPR and Data Protection Must Knows and this handy guide for data retention in psychology practices. However, data protection protocols may differ under certain circumstances. For example, when a request is made for client information/records from a law firm or court for legal purposes.
This article will provide a general guide and some answers to common medico-legal questions psychologists have when balancing their legal obligations to respond to authorised data requests with their responsibility to client confidentiality.
Please bear in mind that the following information does not constitute legal advice and if you do find yourself unsure of a medico-legal issue then we recommend consulting a lawyer.
Establishing Legal Grounds For Client Data Disclosure
Protecting your clients’ data, especially that which is sensitive, will be a key part of your role and responsibilities when working at or running a private psychology practice. However, there are certain scenarios where other factors take precedence over your client’s right to privacy. Legal grounds that need to be met to share client information largely depend on whether the client is willing and in a position to give consent.
When consent is given:
You may share your client’s information if they give you permission to do so. When seeking client consent you must be expressly clear about what information will be shared, for what purposes and with whom. You may obtain their consent in written or verbal form but written is recommended.
The client should also be made aware that they may revoke permission at any time. Even in scenarios where client permission may be willingly given, it is important in your role as a healthcare provider, that you are satisfied that disclosure of personal data is necessary and that it is in the client’s best interests.
When consent is not/cannot be given:
Disclosure of personal data is permissible without client consent, under the following circumstances, as outlined by the GDPR and UK data protection laws:
Legal - mandatory request from a court.
Coroner’s request - to adequately investigate cause of death, etc.
Patient lacks capacity - if the patient is unable to give consent (in line with capacity legislation) but disclosure is thought to be in the patient’s best interests.
Public interest - disclosure is in the public interest and is deemed more important than the client’s right to privacy.
It is advisable, in the interests of transparency, to make patients aware of these potential exceptions to their confidentiality prior to working with them, for example, in your contract.
Handling Mandatory Legal Requests For Client Data
Before even considering sharing personal data, you must be sure that the request is genuine and from an official entity such as a court, coroner, or solicitor. Check that documents include proper identifiers, such as a court order or official letterhead and verify authenticity directly with the issuing authority.
Assuming the request is genuine and legal grounds are met, then you must share only data specifically related to the request.
To limit the information shared, psychologists should:
Review the Request: Examine the specific details and purpose of the request. Identify what information is explicitly required, and ensure there’s no ambiguity in the scope.
Exclude Irrelevant Data: Only provide information directly relevant to the case or request. Avoid disclosing unrelated client details, such as information about other sessions, family members, or medical history not pertinent to the request.
Summarise Where Possible: Instead of sharing full records, provide a concise summary of relevant data that addresses the request while minimising unnecessary disclosure. To avoid non-compliance though, first verify with the requesting authority whether submitting a summary in lieu of full therapy notes, etc., still fulfills the request.
Redact Non-Essential Information: Where sharing full documents is unavoidable, redact sensitive information that falls outside the scope of the request.
If the request is vague or overly broad, ask the requesting party for clarification or limitations to ensure only essential information is shared (more on this below).
When you receive a legal request to share client data, start documenting immediately. Maintain detailed records of the request itself and all communications with the client, court, and legal representatives throughout the process.
How To Raise An Objection Or Clarify A Legal Request For Sensitive Data
If you receive a mandatory legal request for a client’s personal information, you retain the right to object, particularly if the client is unable or unwilling to consent to disclosure of their confidential data.
Objections can be submitted for the following reasons:
The request includes irrelevant or excessive data.
May cause harm if disclosed.
The disclosure request is unclear or lacks specificity.
When raising an objection, you must specify the reason and suggest a next course of action. For example, you might request that the legal authority refine the scope of the request to make it more specific or clarify what information is truly necessary to disclose. If you’re uncertain, the court or a legal adviser should be able to provide further explanation.
If you believe that the disclosure could result in harm, these concerns should be brought to the attention of the judge or presiding officer.
It’s also worth noting that psychologists are permitted to consult their own legal advisers for guidance in such situations. Doing so does not breach confidentiality and ensures that you’re complying with your legal obligations whilst protecting your professional reputation and your practice.
Ensuring Protection Of Personal Data During Transfer To Legal Entities
GDPR dictates that you must protect the security of data, even when sharing with a third party. Therefore, preparation and transfer of the requested information should be carried out either by yourself or other authorised personnel. For example, a senior clinician or designated data protection officer. Any person handling or processing personal data should be fully trained and able to follow the processes and procedures put in place by the clinic to protect confidential client information.
Transferring Data
Electronic data must be encrypted prior to transmission, and secure email or file-sharing platforms should be utilised for sharing information. For physical documents, it’s advisable to use tracked and secure courier services to ensure the information is delivered directly to the court or lawyer’s office.
All files should be clearly labelled as "confidential" and, although legal professionals will usually be aware of their data protection obligations, it does no harm to remind the intended recipient that the files are highly confidential and must be handled by authorised personnel only.
What Happens After A Legal Request For Client Data Has Been Fulfilled?
If you have any concerns over sharing information with legal bodies or the court, then they must be raised prior to disclosure because once information is submitted to the court, it becomes part of the court record, and its use is governed by the court's rules and procedures.
Therefore, if you have doubts as to whether sharing the information may cause harm to your client, or you’re unsure of which information and how much information should be shared, then don’t hesitate to consult your own legal advisor.
In the UK, it is considered good practice for courts or legal representatives to communicate with the psychologist about their intentions for the use of disclosed information, particularly if ethical or professional considerations arise. However, there is no obligation to do so and it is with the court to decide how the information is used and shared during the proceedings. The psychologist who provided the information is generally not required to give further consent for the use of the client’s data in the legal proceedings. However, you may be called upon as a witness or expert witness to clarify the content, context or significance of the disclosed information.
Examples and Case Studies
Case Study: Court Order for Client Records
Scenario: A psychologist receives a court order requesting the records of a client involved in a legal dispute.
Steps Taken: The psychologist verifies the authenticity of the court order, reviews the scope of the request, and consults with a legal advisor to determine what information is pertinent. They provide only the necessary records, redact non-essential information, and use secure methods for transferring the data.
Outcome: The information is safely delivered to the court, respecting both legal obligations and client confidentiality.
Example: Request from a Solicitor Without Client Consent
Scenario: A solicitor requests client information without the client’s consent due to the client’s medical incapacity.
Steps Taken: The psychologist assesses whether the disclosure aligns with the client’s best interests and consults relevant capacity legislation. They inform the client’s representative about the limits of the information that can be shared under these circumstances.
Outcome: Only essential information is shared, ensuring the client’s rights and privacy are respected.
FAQs
What should I do if I receive a vague request for client data?
You should contact the requesting party to clarify the scope and purpose of their request. Specify the exact information needed to avoid over-disclosure and ensure compliance with data protection regulations.
Can I refuse to share client data if I think it might harm my client?
Yes, you can object to the request if you believe the disclosure could cause harm. Document your concerns and communicate them to the requesting authority. It’s advisable to consult a legal advisor for guidance.
How can I ensure my data protection policy is up to date?
Regularly review your data protection policies and practices, and consult with legal professionals to ensure compliance with the latest GDPR and data protection regulations.
Further Information
Do your terms and conditions or client contracts/agreements make clients aware of circumstances where sharing of their personal information is permissible without consent? Are you confident that your data protection policy is up to date and able to stand up to scrutiny?
Get in touch to request a review of your current contracts and policies so you can be confident that you're GDPR compliant.
If you have questions about a specific legal request to share client data then we recommend you consult a legal professional who specialises in medico-legal.
Comments