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cityguru
cityguru, Solicitor
Category: Scots Law
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Experience:  solicitor
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An Insurance company has contacted my Occupational Therapist

Customer Question

An Insurance company has contacted my Occupational Therapist without my permission thus breaking the Access to Medical Records Act 1988 and libelling me in the process. What can I do?
Submitted: 3 years ago.
Category: Scots Law
Expert:  cityguru replied 3 years ago.
Thanks for your questions. Can you explain a bit more what the issue is here. If the OT is not a medical practitioner ( and I agree that as you say he or she is not ) the company were not accessing medical reports within the meaning of the Access to Medical Reports Act 1988. So there is no issue under that Act. If you gave consent to the insurers then they are not doing anything wrong. If you did not give consent then the complaint lies against the OT who is breaching data protection legislation by giving out confidential personal information without your consent.


Where dos the defamation come into it? What did they say about you and to whom?
cityguru, Solicitor
Category: Scots Law
Satisfied Customers: 13323
Experience: solicitor
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Customer: replied 3 years ago.


I gave them consent as follows 'I agree to you consulting any doctor I have consulted about my physical or mental health....' On contacting Canada Life they stated the doctor did not just mean my GP. The OT actually stated in her replay that she was not a doctor. Also the actual permission to Doctor was over 2 years old is this unlimited time wise. The defamation comes in a letter from Canada Life to the Financial Ombudsman Service where they stated 'Whilst we sympathise with Mr Armstrong's position, we have experienced difficulty in explaining the workings of the policy to him. As a result he has attempted to make certain facts "fit" in an attempt to persuade Canada Life that he has a valid claim, and is now concentrating on the medical evidence which in our view is irrelevant.' I was turned down in a critical illness claim for loss of Independent Existence as I suffer from diabetes. Even though the diabetes has nothing to do with what I am claiming for and is not listed in policy exclusions. They did not think it was libel as letter was not addressed to me.

Customer: replied 3 years ago.


Not sure if this comes under Scots or English law as my employer and the insurance company are based in England but the OT and I live in Scotland.

Customer: replied 3 years ago.

Attachment: 2013-02-22_170025_grp57_1.pdf

Attached is copy of policy conditions. Canada Life are saying that Diabetes is not covered even though it is not included in the list of exclusions for LIE. They are using catch all wording ;this is not a full list....', even thought this is against Association of British Insurers (ABI) guidelines. Basically they can say anything is not covered by the policy so it is not robust. The legal team from DiabetesUK agreed that Diabetes was only excluded for specific conditions as stated in the policy.

Expert:  cityguru replied 3 years ago.
Ok well on that basis the OT should probably not have released any information and is in breach of the data protection act but that does not mean the insurer has done anything wrong. I would expect under the policy that they are entitled to disclosure of such information anyway. It sounds like a complicated dispute and whilst I can see why you might find what they say offensive, I am not sure it would be considered defamatory. It may just be their opinion in context. It may be wrong but it may their opinion.

if you have complained to the ombudsman then I would suggest you may be best to wait the outcome of that adjudication.

You asked which legal system applies. the data protection and medical report legislation is common to both systems. The insurance dispute will be governed by the policy terms which may specify the applicable law.

Are you saying that your claim is for one disability or illness but was rejected for non disclosure of diabetes?
Expert:  cityguru replied 3 years ago.
I have just seen your supplemental post with the policy documents. I am afraid I find it impossible to comment on whether you suffer LIE . That must depend presumably upon whether you have 3 of the 6 characteristics. I assume there is appropriate medical evidence to that effect? Obviously Diabetes itself is not one of the covered illnesses or at least not specified in the policy so it presumably depends upon whether you have the LIE characteristics regardless of the cause.


OR are they saying you failed to disclose the diabetes and therefor they can rescind cover?
Customer: replied 3 years ago.


It is a group policy which covers all employees without the need for medical or health declaration. This was confirmed by my employer. It is usual for the risk of those who may have some health problem will be covered by the other 99% of employees who are healthy. I advised them I had diabetes at the time of the claim so there was no non disclosure involved. I supplied the evidence that I met the 3 out of 6 conditions (attached). After initially totally ignoring this Canada Life said this statement did not support

my claim! I have also provided evidence in support of my claim from my diabetic and rheumatology consultants. I am at my wits end to think what they actually will accept as proof. however the y rejected my claim as I was a diabetic which is not applicable to my claim based on how I read the policy. Please note I have worked in the insurance industry for 20 years. It was a year after the original claim which they first turned down as diabetic Neuropathy was not covered by the policy. I advised them that as it was LIE I was claiming for and my symptoms were caused by Osteoarthritis that this was irrelevant. They them turned it down because I was a diabetic. Thi FOS initially agreed with their decision but the adjudicator like the insurer totally ignored that the claim was made due to Osteoarthritis and not diabetes and seemed totally oblivious to the fact that you have to say in the policy wording what is and is not covered. Diabetes as I have said is mentioned but only for specific illnesses. It is not an exclusion for LIE nor is there any specific illness you must have to qualify for LIE.

Attachment: 2013-02-22_175954_kate1.pdf

Attachment: 2013-02-22_180046_kate2.pdf

Expert:  cityguru replied 3 years ago.
You are obviously suffering considerably but I have to be honest and say that the 2 letters you supplied do not seem to be to be clear evidence that you have LIE. I am obviously not a medical expert but the wording of he policy requires that you have at least 3 of the 6 characteristics which require direct assistance from someone else. The letters refer to you needing assistance but not in a way that is clear and directly refers to the characteristics of the policy. Reading this as a complete outsider I would at least ask for more evidence. Perhaps the issue is that the evidence has not been spelt out clearly enough.
Customer: replied 3 years ago.

Still doesn't alter the fact that they declined the claim not because I didn't meet the criteria but that I was a diabetic. I have checked the permission given and it is as stated only for a doctor so surely the insurer must have been aware of this and the OT's reply refers to the copy of the permission they sent her by saying she is not a doctor, should have stopped her replying as well. I assume I will have to take this up with the local NHS authority. The insurer were taking the OT's letter out of context saying it said I was fit to work as well which the OT has subsequently totally refuted. Will I need legal help going to the local authority or cant it be handled by myself?

Expert:  cityguru replied 3 years ago.
I dont follow that conclusion either . you meet the LIE criteria or you don't. The cause is not relevant surely? Diabetes is not itself an covered risk but that does not mean that the consequences are not covered if they result in LIE.

Why do you need to go to the NHS? If you have lost the complaint to the FOS your only recourse is to sue and I do not know if legal aid is available for that. I doubt it I am afraid but you can certainly sue yourself
Customer: replied 3 years ago.


I meant complain to the local NHS about the OT giving out details without my permission. She did actually provide information from my medical file. Like you I can see no relevance between my claim under LIE and being diabetic. I could if I had an amputation or kidney failure directly related to diabetes but yet again I cannot see this in the policy exclusions.


 


I haven't actually lost the case with the FOS, the adjudicator who unfortunately for me has just joined as a graduate and is a trainee with no experience in the field, agreed that diabetes was excluded but the case has now been escalated to an ombudsman who hopefully will not be fooled by the small print that is irrelevant.

Expert:  cityguru replied 3 years ago.
Ok fine - you can complain to her regulatory body if that is the NHS but also the office of the information commissioner
Customer: replied 3 years ago.


Thank you for your help. Sorry for adding extra information but glad to see that I wasn't imagining things about the policy document.

Expert:  cityguru replied 3 years ago.
Well I hope you get a satisfactory outcome. Good luck with this

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