We take a number of telephone calls and other enquiries each year from doctors and other clinical professionals who call our claims advice line with reports of damaging information being published about them or inadvertent publication by them of potentially prejudicial comments about others. Discussions arise on the subjects of defamation, breach of confidence, professional conduct and harassment. The callers are often upset, concerned, occasionally angry and looking for advice (if not retribution) about their legal position and any remedies available to combat what has usually become a distracting, sometimes a highly distracting, episode. So we thought we would cover this subject in this article, having regard not only to pitfalls but also the insurance policy issues that might arise.
In her article for the British Medical Journal, Margaret McCartney, a GP in Glasgow, looked at the difficulties of maintaining professionalism within social media. She reported that in the police force, freedom of information data revealed that over a four year period two officers had been sacked, seven had resigned, and over 150 had been disciplined for placing “inappropriate” photographs or comments online. In the clinical professions she reported nurses had been sacked after making comments about patients and colleagues or posting revealing photographs of themselves in uniform, or of patients, online. Disciplinary steps being taken against doctors who posted derogatory comments about colleagues.
The ease of access to, and common use of social media is well known. Networking, feedback, regulation, and revalidation are all reasons provided to us as to why doctors have used social media. A healthy caution should always attend medical professionals contributing to social media. We also urge a re-reading of the doctor’s insurance to review what is and is not covered by their insurance.
Many insurance policies cover claims made against doctors who are accused of having made defamatory comments. Some insurance policies may provide that indemnity insurance cover is conditional on the allegedly defamatory remarks having been made in the context of the doctor/patient relationship (for example in a medical record) or perhaps within a supervisory or regulatory context. Consider for example whether an interview of a doctor by a media organisation about a news item, perhaps involving another doctor or group of doctors under the media spotlight. Is an arguably defamatory remark is made by the doctor interviewed covered? It might not be. Many doctors sit on regulatory, professional or validation organisations and comments made by them in their role as a member of those bodies might not be covered by their personal indemnity insurance. If they were speaking in a personal capacity about their personal views, as distinct from the “corporate” views of the body they otherwise represent, then the insurance the organisation carries (if any) might also not cover them.
Blogging on feedback sites or on mainstream social media hubs such as Facebook and Twitter has become commonplace with many patients or other professionals willing to share their experiences, sometimes in a variety of derogatory ways, about others. While an off the wall remark can often be seen for what it is, sometimes these remarks are defamatory and can amount to harassment under the Protection from Harassment Act 1997. That essentially defines as harassment any conduct that would be deemed by a reasonable person to amount to harassment. While the police are given powers to deal with such conduct as a criminal offence under the Act, we usually find it more effective (and controllable) to rely on the civil law. Using the civil remedies, where the conduct justifies it, we can seek an injunction, which will usually stop the conduct complained of, or lead to draconian sanctions including imprisonment.
Content placed outside the jurisdiction of the UK, especially feedback about doctors from patients and former patients, can be more troublesome to deal with. The managers of the content, often a website or search engine provider, can be called upon the close down a site or remove the offending content.
In some cases though the best option is to ignore it and limit the oxygen such postings need to remain current.
Aside from defamation and harassment there is the difficulty of breaching confidences by inadvertently providing personal information that ought not to be disclosed. No surprise then that insurers and defence organisations are reminding doctors to take care in the aftermath of a number of reports of confidential patient information being shared by doctors on social media. There is some excellent guidance available from the GMC with a warning that doctors should be careful about sharing information online. Click here for the relevant guidance.
The guidance is simple and common sense. It reminds doctors of their professional duties and urges them not to publish confidential information using media that is widely available to the public. While it may be tempting to think that content so provided will be limited to a closed group, it does not take much to tick the wrong box or enter the wrong details and suddenly a wider group, including the subject of the posted content perhaps, will be able to see and share the information. Our advice is much the same as we offer doctors when advising on the content of medical records. Imagine a court is reading this material: would you be happy to have the judge read what you have said? Let me end with a warning of the type offered by the duty sergeant to his police officers in Hill Street Blues: “Let’s be careful out there.”