Harassment or Defamation – are you affected?

Unfortunately, there are times when a healthcare practitioner might receive unwanted attention or behaviour from their patient. Our director Deepika Raino, head of professional regulation & healthcare speaks with Nick Collins, specialist in defamation and harassment cases from St Pauls Chambers (Leeds). We discuss the issues around defamation and harassment and some of the questions we’ve been asked by our healthcare clients.

The tests:-

What conduct amounts to harassment?

A leading judgment was given by Simon J in Dowson v CC Northumbria (2010) in which he said:

“I turn then to a summary of what must be proved as a matter of law for the claim in harassment to succeed.
There must be conduct which occurs on at least two occasions,
Which is targeted at the claimant,
Which is calculated in an objective sense to cause alarm or distress, and
Which is objectively judged to be oppressive and unacceptable.
What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
A line is to be drawn between conduct which is unattractive and unreasonable and conduct which has been described in various ways: “torment” of the victim, “of an order which would sustain criminal liability”.
In a more recent case (Scottow v CPS 2020), it was said:

“Harassment is a level of seriousness beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody’s day to day dealings with people. It must cross the boundary between that which is unattractive, even unreasonable, and that which is oppressive and unacceptable. To cross that border, the misconduct must be of an order which would sustain criminal liability under S2 Protection from Harassment Act 1997”

What amounts to Defamation?

The Defamation Act 2013 says the statement must have caused or is likely to cause serious harm (or serious financial loss in the case of a business) to the reputation of the claimant. The key words are “serious harm”. The most common defences to a defamation claim are that the words or publication are true or substantially true, are honestly held opinions and are a matter of public interest.

Below we discuss some scenarios experienced by our healthcare clients.

Question 1
I’m receiving presents and cards from one of my patients. The patient is also asking me to go out for a coffee or a drink. I’ve politely declined their invitations and I’ve asked the patient not to buy me anymore gifts, but the patient is persisting in their behaviour which is starting to make me feel uncomfortable. Does this amount to harassment?

Answer: Although this unwanted attention might make you feel uncomfortable, offers to go for a coffee or buying gifts would not amount to harassment. In this situation it might be worth sitting down with the patient with another member of staff to explain why they do not need to buy gifts to receive good care from you and how important it is to maintain professional boundaries in your patient-healthcare relationship. If the behaviour however persists, discuss this with your colleagues and consider whether it is in the patient’s best interests (and yours) to transfer their care to one of your colleagues.

Question 2
What if the patient starts waiting for me to finish work outside my workplace, or finds out where I live and comes to my home?

This scenario is almost certainly moving from “unattractive and unreasonable” to the “oppressive and unacceptable” and is likely to sustain criminal liability under the 1997 Harassment Act. Uniquely, the Harassment Act creates both a criminal and civil offence. If the patient’s acts are causing a real concern for safety, then it is a matter that should be reported to the police and criminal action is likely to follow. In applying a “belt and braces” approach a civil action for harassment might also be considered. If those proceedings are brought quickly, an application for an interim injunction can be considered to seek a court order that the patient must not attend outside your workplace and home or carry out any other actions that amount to harassment.

Make sure you inform your employer of the behaviour straightaway and keep them informed of all contact. Ask for their advice and support in relation to the above.

Question 3
Our practice received a complaint from a patient about information held in their medical records which they are not happy about. We’ve followed our complaints procedure and have responded to the patient on several occasions explaining why we’re holding this information in their records and why we’ve concluded that the information is accurate. The patient continues to write lengthy letters and often before we’ve had a chance to consider their last letter, they write another one. This is taking up a lot of our time and it is now starting to cause our staff stress and anxiety. At what point should we treat this behaviour as harassment?

Answer: This will depend largely on the content, tone and volume of the correspondence being sent by the patient.

If it remains polite and constructive (even if misguided) then although the practice staff might find the complaint correspondence annoying, unattractive and even unreasonable it is not likely to be considered oppressive and unacceptable.

If, however the correspondence is or becomes threatening, vitriolic and abusive causing genuine anxiety to staff, then at that stage it is likely to have moved to oppressive and unacceptable behaviour amounting to harassment. At this stage we would recommend the practice considers having a meeting with the patient (depending upon the level of inappropriate behaviour) to explore what’s causing their behaviour, or alternatively sending a firm but polite letter to the patient referencing the relevant correspondence, explaining it’s impact upon the staff and making clear the correspondence must end, failing which further action will be taken. If the patient ignores the request and continues the behaviour further action might be necessary. This might include removing them from your patient list, informing the police, or taking legal action under the harassment laws.

Question 4
A patient has been writing negative comments about me and my practice on social media which are not true. They are also leaving negative reviews on our website. Does this amount to defamation?

Answer: This will depend upon the frequency, tone and seriousness of the reviews. If the posts are untrue and are likely to cause serious harm to your reputation/ your staff and/or to your business there are likely to be grounds to pursue a claim for defamation. In addition, as there has been more than two posts an action may also be pursued for harassment.

Do not delay in acting. In the first instance a letter should go to the patient with a request that they remove the posts. Unless very serious and already read by others, your request might be made on the basis that if withdrawn immediately no further action will be taken. You might also consider writing to the social media platforms/website operators asking them to remove the posts explaining how they violate their policy.

If the posts are very serious and damaging to reputation, legal action may be considered necessary, even if they are withdrawn.

If it seems likely the patient will continue to post similarly untrue and damaging reviews then action should be pursued for harassment and defamation. The advantage of harassment proceedings is that once issued, an application can be made to the court for an urgent interim injunction. This would not lead to the posts being immediately taken down but if granted, it would at least prevent any future posts pending the outcome of proceedings.