R v W Primary Care Trust [2004] EWHC 2085 (Fam)

This judgment is being handed down in private on 3 September 2004. It consists of 16 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.[2004] EWHC 2085 (Fam)Case No 0119/2004
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 September 2004
Before
THE HONOURABLE MR JUSTICE SUMNER
Between
SAMUEL RApplicant(by his Grandmother and Litigation FriendApplicantJune Margaret D)ApplicantW PRIMARY CARE TRUSTRespondent
Mr Bright (instructed by Anthony Collins Solicitors) for ApplicantMr Anthony (instructed by Mills & Reeve Solicitors) for RespondentHearing Hearing dates: 24 June 2004
JudgmentMr Justice SumnerApplication
[1]This is an application on behalf of 10 year old Samuel R by his maternal grandmother and Litigation Friend, Mrs June D. It is for pre-action discovery under s.34(2) of the Supreme Court Act 1981 and Part 31.16 of the Civil Procedural Rules. It relates to a potential claim arising from treatment given to Samuel by the Respondent Care Trust between 1998 and 2002. That treatment arose from Samuel’s behavioural and other problems.

Applicant’s case

[2]It is said that it was not until the summer of 2002 that Samuel was properly diagnosed with Asperger’s Syndrome and Attention Deficit Disorder. In failing to make this diagnosis at an earlier time during his treatment, the Respondent failed in its duty to provide proper care for Samuel and were negligent. Had an earlier correct diagnosis been made Samuel would have received different treatment. This would have avoided or ameliorated his present condition. Pre-action discovery is sought to determine whether such a claim has a proper foundation.

Partial disclosure

[3]The Respondents have given partial disclosure. They resisted giving full disclosure for 2 reasons. Firstly there was the concern about the effect on Samuel. That was met at the hearing by a voluntary condition offered on his behalf that further discovery would neither be shown to him nor discussed with him.[4]The second reason related to the position of Samuel’s mother. She is not a party to the application. She features in the early notes kept by the Respondent. Some of the details are felt by the Respondent to be of a sensitive nature. I was invited to read one sentence in particular which has not so far been disclosed to the Applicant. This was with the knowledge and agreement of the Applicant. Suffice it to say that the Respondent’s description is apt.

Data Protection

[5]A further matter which has troubled the Respondent is the Data Protection legislation. It was not put forward as a reason for restricting disclosure. Its relevance it is said arises under the issue of costs. It is under that heading that I shall consider it.

Representation

[6]Before me the Applicant was represented by Mr Bright. The Respondents were represented by Mr Anthony. I am grateful for their assistance.

Background

[7]Samuel was born on 4 September 1993. Soon afterwards he went to live with his maternal grandmother. She obtained a residence order in relation to Samuel on 8 July 1994 when he was less than a year old. He has remained in her care since that time.[8]As a result of Samuel’s disruptive behaviour he was seen by Mrs George, a Child and Adolescent Psychotherapist employed by the Respondent, in May 1999. After 2 assessments he started to see her weekly from August 1999. It is not necessary to trace the subsequent history. It concluded with the diagnosis of Dr Carter, the Respondent’s Consultant Community Paediatrician, in July 2002 to which I have referred. Suffice it to say that it is that diagnosis which it is claimed could and should have been made earlier.

The Law

[9]This has not been in dispute. Its application has not been so straight forward. I shall set it out shortly.[10]I start with s.33(1) of the Supreme Court Act 1981. “Powers of High Court exercisable before commencement of action. 33(1). On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say –(a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings, and … (2). On the application, in accordance with rules of court of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court [….], the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim – (a) to disclose whether those documents are in his possession, custody or power; and(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order – (i) to the applicant’s legal advisers; or (ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant. (a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings, and … (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order – (i) to the applicant’s legal advisers; or (ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.[11]Under Part 31.16 of the Civil Procedure Rules 1998 it is provided – “(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where –(a) the respondent is likely to be a party to subsequent proceedings;(b) the applicant is also likely to be a party to those proceedings;(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and(d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; (iii) save costs. (4) An order under this rule must – (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.” (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; (iii) save costs. (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.”[12]Mr Bright refers to the judgment of Mr Justice Lawrence Collins for a series of principles which I gratefully adopt from his judgment in Moresfield Ltd et al. v Barnes July 2003, No. [2003] EWHC 1602 (Ch). At para. 32 he said - “(a) CPR 31.16 (like the enabling provision in section 33(2) of the Supreme Court Act 1981) does not require that the proceedings are likely, but rather that the respondent is likely to be a party if proceedings are issued, where “likely” means “may well”; (b) because disclosure will only be ordered in relation to documents which would be the subject of standard disclosure the court must be clear what the issues in the litigation are likely to be; (c) the court is only permitted to consider a grant of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event; (d) if there is such a real prospect the court should go on to consider the question of discretion which has to be considered on all the facts and not merely in principle but also in detail; (e) pre-action disclosure should not be ordered as a matter of course, at any rate where the parties at the pre-action stage have been acting reasonably; (f) the discretionary elements include the clarity and identification of the issues raised by the complaint, the nature of the documents requested, and the opportunity which the complainant has to make its case without pre-action disclosure; (g) the more focussed the complaint and the more limited the disclosure sought, the easier it is for the court to exercise its discretion in favour of an order on the basis that transparency was what the interests of justice and proportionality most required. 33. An order may be made under CPR 31.17 “only where” the following conditions are fulfilled:
“The court may make an order under this rule only where – (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.” 34. It is not necessary that the documents will support the applicant’s case or adversely affect the case of another party. It is sufficient that they are likely to do so, in the sense (again) of “may well” (and not “more probable than not”). When applying that test it has to be accepted, and is not material, that some documents which may then appear likely to support the case of the applicant or adversely affect the case of one of the other parties will turn out, in the event, not to do so.” “The court may make an order under this rule only where – (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.” 34. It is not necessary that the documents will support the applicant’s case or adversely affect the case of another party. It is sufficient that they are likely to do so, in the sense (again) of “may well” (and not “more probable than not”). When applying that test it has to be accepted, and is not material, that some documents which may then appear likely to support the case of the applicant or adversely affect the case of one of the other parties will turn out, in the event, not to do so.”

The Respondent’s case

[13]Mr Anthony for the Respondent considered firstly the question of whether there was “a real prospect in principle of …….an order being fair to the parties if litigation is commenced, or of assisting the parties to litigation or of saving costs in any event”. He accepted that for the purpose of this application it was fair to the parties within that definition. I have no doubt that is correct.[14]However he then pointed to the second relevant matter for the court to consider. That is whether “there is such a real prospect the court should go on to consider the question of discretion which has to be considered on all the facts and not merely in principle but also in detail”.[15]It was under that heading that he invited the court to consider reservations expressed by Mrs George about the effect on Samuel. Secondly he raised the question of the effect on a third party, Mrs Donna D, Samuel’s mother. I consider each of these in turn.

The effect on Samuel

[16]The Respondent disclosed a letter from Mrs George in which she sets out her worries about Samuel. It is dated 28 July 2003. It relates to the confidential nature of the therapy she provided.[17]She pointed out that Samuel came to therapy with the agreement that the work was private. He had been annoyed with her on one occasion when he thought she had discussed his case with others. Next she was worried about the effect of his discovering what others had said about him. She cites examples. If he found out about this, she thought it might well have an adverse effect on his security and low self worth.[18]Mr Anthony submits that these considerations should make the court consider carefully whether there should be further disclosure of confidential notes made in the course of private therapy at this stage. It was because of the potential effect on Samuel. This concern was raised in the Respondent’s solicitors’ letter of 14 August 2003.[19]The response on behalf of the Applicants is to be found in paragraph 28 of Mr Bright’s skeleton argument of 17 June 2004. There he submits – “There is no reason for Samuel to be informed the detail of the documents disclosed at this stage. If anything need be said, he can be sensitively told that a court wants to make sure that he is receiving the best possible treatment, as a special child.”[20]In argument Mr Bright readily accepted that that could take the form of a condition in the terms which I have already set out. In my judgment that fully and sufficiently meets the concerns understandably raised by the Respondent. Mr Anthony did not seek to argue otherwise. However he submitted that further disclosure could follow later if it was then reasonably required.[21]The first part would be limited under Mr Anthony’s suggestion to the documents so far revealed. The second part including more sensitive matters would only be disclosed if there was a justifiable need for this later.[22]Mr Bright argued that there should be full disclosure now. He pointed to the particular nature of the claimant’s case. The diagnosis and treatment were substantially dependent not on observation, examination, or tests. They were more dependent on reports of Samuel’s behaviour on other occasions.[23]This would come from Mrs D and latterly from his school. Mrs D is likely to know whether her comments are recorded accurately. She is also likely to know what other information was given. To deprive her of the opportunity to check on this could hardly assist.[24]It is also difficult to see how any specialist could advise with authority without knowing certain matters. Amongst the more important are whether the material on which the Respondent relied was both complete and accurately recorded. Mrs D is likely to know this.[25]I find those arguments compelling. To have a two stage disclosure will in all probability increase expense and cause delay. I can see no sufficient advantage and strong arguments against it. In particular they are the extra time and expense that would be involved. There is also the likely inability in this case of any professional advising to be able without full disclosure to give a concluded view. Subject to the proviso about not informing Samuel, I reject this submission.

Disclosure and Mrs Donna D

[26]The Respondent is also concerned about disclosure of the notes where they breach the confidence of a third party, in this case Samuel’s mother, Mrs D. I have already mentioned that there is reason for this in relation to one sensitive matter to which my attention was drawn. The question therefore is whether proper disclosure should be restricted where it involves the rights and confidences of a third party in the circumstances arising here. In meeting that point Mr Bright both in his skeleton argument and his submissions drew support from decisions of the Court of Appeal.

Third party rights and the law

[27]The first case is Campbell v Thameside Metropolitan Borough Council (1982) 1 QB 1065. That was an application under s.31 of the Administration of Justice Act 1970 which is in similar terms to s.33 of the Supreme Court Act 1984 which I have set out.[28]It concerned a potential claim by a school teacher who had been violently assaulted by an 11 year old pupil. She sought disclosure of all documents in possession of the school. It included reports from teachers, psychologists and psychiatrists on the pupil. The defendants appealed against the decision of Russell J. as he then was, who ordered disclosure. They said they were confidential documents of a class which was protected by public interest immunity.[29]In the course of his judgment, Lord Denning MR pointed out that the defendants relied upon the fact that the reports on the child were very confidential. If it were otherwise, the makers of them would be inhibited in making them as frankly as they should. The court examined the documents. He held that the documents were of crucial significance on whether the school should or should not have known that the boy might be of a violent disposition. It was a question of balancing public interest against the interests of the plaintiff. There was a real risk that the plaintiff would be the victim of a denial of justice if the documents were not disclosed.[30]Ackner LJ, as he then was, pointed out at p.1076 – “The proper approach where there is a question of public interest immunity is a weighing, on balance, of the 2 public interests, that of the nation or the public service in non-disclosure and that of justice in the production of the documents.”[31]He accepted that the documents might be sensitive material which the school would not wish to have disclosed. However he considered that Russell J. was right to place weight on the real risk of the plaintiff being the victim of a denial of justice.[32]The principles in relation to confidentiality and Article 8 rights have been considered more recently in the case of Regina (S) v Plymouth City Council (2002) 1WLR 2583. The case concerned an adult who was in the defendant’s guardianship under the Mental Health Act 1983. Her mother had statutory functions under the Mental Health Act 1983 as the adult’s nearest relative. For this purpose she sought information about her son which was refused.[33]She applied for judicial review which was denied. She appealed. The appeal was allowed.[34]The argument centred firstly on Article 8 of the European Convention on Human Rights. Secondly there was a claim by the local authority of a common law obligation of confidence. Public interest immunity was not relied upon.[35]In the course of her judgment Hale LJ, as she then was, pointed out at paragraph 33 – “Some of the information will indeed be confidential to C: the most obvious examples are the medical reports and recommendations but social workers and other professionals also owe him a duty to respect his confidence. Some of the information may be confidential to other people: opinion shared at professionals meetings could fall within this category. But some of it may not be confidential at all: straightforward descriptions of every day life are not normally thought confidential………even where information is covered by an obligation of confidence, the breadth of that obligation depends upon the circumstances.”[36]At paragraph 36 she said – “The court has to comply with the rules of natural justice, which normally require that anything relevant to the court’s decision be seen by both sides to the dispute. As Lord Mustill put it in re: D (Minors)(Adoption Reports: Confidentiality) (1996) AC 593, 615:
‘It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by a court when reaching a decision adverse to that party’
. That principle may be qualified if there are competing interests sufficient to outweigh it. In particular, where the proceedings concern the welfare of a child or a patient, it may have to yield to the need to protect that person from harm or the risk of harm. However, that person also has an interest in the fairness of the trial and in having the material properly tested in court ………. Hence the right to see all the documents in a case may be outweighed by other considerations, but there must be a clear and proper public objective and the limitation must be proportionate to that objective. There are proper public objectives other than the protection of a child or patient from harm: see the discussion by Munby J. in re: B (Disclosure to Other Parties) (2001) 2 FLR 1017. But no such objective has been put forward in this case, nor are some of the more obvious ones, such as national security or the protection of informants, relevant. In general, therefore, one would expect disclosure of all the information put before the court in proceedings under section 29 for the purpose of establishing that the nearest relative “has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from guardianship ……or is likely to do so”, unless there was a demonstrable risk of harm to the patient or others in so doing.”[37]At paragraph 49 she said – “C’s interest in protecting the confidentiality of personal information about himself must not be underestimated. It is all too easy for professionals and parents to regard children and incapacitated adults as having no independent interests of their own: as objects rather than subjects. But we are not concerned here with the publication of information to the whole wide world. There is a clear distinction between disclosure to the media with a view to publication to all and sundry and disclosure in confidence to those with a proper interest in having the information in question. We are concerned here only with the latter. The issue is only whether the circle should be widened from those professionals with whom this information has already been shared (possibly without much conscious thought being given to the balance of interests involved) to include the person who is probably closest to him in fact as well as in law and who has a statutory role in his future and to those professionally advising her. C also has an interest in having his own wishes and feelings respected. It would be different in this case if he had the capacity to give or withhold consent to the disclosure: any objection from him would have to be weighed in the balance against the other interests, although as W v Egdell (1990) Ch 359 shows, it would not be decisive. C also has an interest in being protected from a risk of harm to his health or welfare which would stem from disclosure; but it is important not to confuse a possible risk of harm to his health or welfare from being discharged from guardianship with a possible risk of harm from disclosing the information sought. As In re D (Minors) (Adoption Reports: Confidentiality) (1996) AC 593 shows, he also has an interest in decisions about his future being properly informed. That balance would not lead in every case to the disclosure of all the information a relative might possibly want, still less to a fishing exercise amongst the local authority’s files. But in most cases it would lead to the disclosure of the basic statutory guardianship documentation. In this case it must also lead to the particular disclosure sought. There is no suggestion that C has any objection to his mother and her advisers being properly informed about his health and welfare. There is no suggestion of any risk to his health and welfare arising from this. The mother and her advisers have sought access to the information which her own psychiatric and social work experts need in order properly to advise her. That limits both the context and the content of disclosure in a way which strikes a proper balance between the competing interests.”[38]I have therefore to strike a balance between the various interests that arise. The main ones are the right of Mrs D to have her medical details kept confidential. Against that is the public interest in the proper administrations of justice which should permit a party to have full disclosure of documents relevant to any potential claim he may have.[39]I also bear in mind the relationships involved. This is not a case of a party who is a stranger to the potential claimant having her confidential details disclosed.[40]There is also Mrs D’ right to respect for her private life. The balance is therefore between “the public and private interests in maintaining the confidentiality of this information and the public and private interest in permitting, indeed requiring its disclosure for certain purposes”, (Hale LJ, paragraph 32). I have the added difficulty of not knowing all the details to which the disclosure may lead.[41]I note in particular that the disclosure sought is only to medical and legal advisers who will be bound by rules of confidentiality. It is for a defined purpose namely whether a proper claim can be established for Samuel’s benefit. If refused it could lead to an injustice if material supportive of the claim cannot be evaluated.[42]I am wholly satisfied that in balancing the competing interests I should order disclosure in this instance. The interests of a fair trial prevail. I am also influenced by other factors.[43]The part played by Mrs D was limited. The maternal grandmother Mrs D had a residence order within a year. It all occurred nearly 10 years ago.[44]The primary condition accepted by Mr Bright is that there will be no disclosure other than to medical and legal advisors and Mrs D. I propose to impose a further condition. I refer by way of example, without giving the details, to the one sentence which I was invited by Mr Anthony to read. It may or may not be known by Mrs D. At the moment it does not seem likely to be relevant to the matters which those advisors will have to determine. It could be upsetting to Mrs D were Mrs D now to learn about it and it was not relevant to Samuel’s case.[45]I am aware that Mrs D is said to be generally in support of this application. No permission has been sought alternatively obtained from her for disclosure of matter personal to her.[46]The further condition is as follows. There shall be no disclosure to Mrs D of information relating to Mrs D which in the opinion of those advising her is not relevant to the consideration of the issues now arising in relation to Samuel’s potential claim. I cannot be more specific than that. I do not consider however that it is necessary to involve the time and expense of returning to court unless Samuel’s medical and legal advisers are in doubt about the application of this further condition.

No disclosure to Mrs D

[47]The next question that Mr Anthony raised was whether in the exercise of the same discretion there should be a further restriction. That was that the papers should only be revealed to legal and medical advisors. Mr Bright opposed this. There will be cases where such a restriction is appropriate and reasonable.[48]In this instance Mr Bright has satisfied me that I should not place such a restriction on any order for disclosure. It relates to the factors I have already identified. Mrs D will have been the person who saw Samuel at home. She will have visited and talked with the teachers at his various schools.[49]I have already set out the conditions which I consider should apply. I see no good reason to apply this further condition. I am satisfied that there are sound arguments why it is likely to lead to potential problems. They include the significant risk of further time consuming and expensive applications to court and the need to check details with Mrs D. I reject this further condition.

Conclusions

[50]Mr Anthony rightly does not dispute that an order would be fair between the parties. He raises various issues in relation to potential harm to Samuel, the question of his mother’s confidentiality, whether full discovery is now required, and whether Mrs D should be aware of that full discovery. I have sought to set out my conclusions above. In the exercise of my discretion taking account of all the events of which I am aware, I hold that there should be full disclosure but subject to the conditions agreed or I have set out.

Costs

[51]This matter was argued ahead of my decision. It gives rise to a number of important principles. It is governed by Rule 48.1 which provides as follows – “Pre-commencement disclosure and orders for disclosure against a person who is not a party.(1) This paragraph applies where a person applies – (a) for an order under – (i) section 33 of the Supreme Court Act 1981; or(2) The general rule is that the court will award the person against whom the order is sought his costs – (a) of the application; and (b) of complying with any order made on the application.(3) The court may however make a different order, having regard to all the circumstances, including – (a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and (b) whether the parties to the application have complied with any relevant pre-action protocols.” (a) for an order under – (i) section 33 of the Supreme Court Act 1981; or (a) of the application; and (b) of complying with any order made on the application. (a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and (b) whether the parties to the application have complied with any relevant pre-action protocols.”[52]It follows that ordinarily the party required to provide pre-action disclosure will be awarded his costs. A different order may be made. Regard must be had to all the circumstances including the extent to which it was reasonable for the person against whom the order was sought to oppose the application.[53]The Respondent was informed of a potential claim from the Applicant’s solicitors in April 2003. It replied promptly indicating that it was ready and prepared to make disclosure. Mrs George’s reservations were mentioned.[54]By letter of 14 August 2003 the Respondent’s solicitors stated they were unable to release the records. It would place them in breach of the Data Protection Act 1998. This was because of potential harm to both Samuel and his mother which they correctly said were sensitive. They pointed out that even if Mrs D’ consent was obtained there would still be the question of disclosure being harmful to Samuel.[55]This led to a response on 17 December from the Applicant’s solicitors. They said the Respondents were being unnecessarily obstructive. They were invited to disclose the medical records “without the need for a potentially costly court application (in) which we would be seeking costs from your client”. It was followed by the Applicant’s present application of 12 March 2004. There had been edited disclosure by this time.[56]I have to consider whether in the exercise of my discretion I follow the general rule as set out in Rule 48.1 or make a different order. I have regard to all the circumstances and in particular the extent to which the opposition of the Respondent has been reasonable.[57]The start of any proper analysis must be to consider the position of Mrs D. As a result of the residence order of 8 July1994 she acquired parental responsibility for Samuel, (s.12(2) Children Act 1989). Mrs D has always had parental responsibility as Samuel’s mother. She did not lose it when Mrs D acquired it by reason of the residence order.[58]The result of this is that both Mrs D and Mrs D have equal rights to see medical records relating to Samuel. I consider next what those rights are.

Right to see medical records

[59]In relation to this I am grateful for the references I have been given to Michael Jones “Medical Negligence, 3rd edition, 2003”, which sets out the present position. The Data Protection Act 1984 first gave patients a right of access to information including medical records held about them in computerised form. Those rights are now to be found mainly in the Data Protection Act 1998, the Access to Health Records Act 1990, and the Access to Medical Reports Act 1988. As the author says, para. 10-105 – “This legislation is essentially concerned with the right of patients to know what is contained in their medical records and to permit the correction of inaccurate records, but it may also be relevant in the context of litigation as one means of discovering what went wrong with the patient’s treatment.”[60]By s.7(1) of the Data Protection Act 1998 there is a right of access to personal data by the person who is the subject of personal data. The person identified under the Act as the Data Controller is not obliged to comply where to do so would mean disclosing information relating to another individual. That is unless the other individual consents or it is reasonable in all the circumstances to comply with the request without the consent of the other individual (s.7(4). Under s.7(5) a court can order a Data Controller to comply with the request for access to information if he has acted in breach of the Act.[61]There are exceptions. Under Article 5 of the Data Protection (Subject Access Modification) (Health) Order 2000 one exception is where access “would be likely to cause serious harm to the physical or mental health of the data subject or to any other person”.[62]Under Article 7(3) a further exception arises where the data subject is a child. An application for access can be made by a person having parental responsibility. However the information need not be given where it would involve – i) disclosure of information provided by the child in the expectation that it would not be disclosed to the person making the request or, ii) where it resulted from an examination or investigation where the child consented in the expectation that the information would not be so disclosed or, iii) the child expressly indicated that it should not be so disclosed.[63]Mr Anthony argues that that latter exemption entitled the Respondent to withhold the documents subject to any court order that may be made. Mr Bright disputes that. He relies upon Schedule 3 of the Data Protection Act 1998.[64]I can best resolve this matter by pointing to another part of the judgment of Hale LJ in R (S) v Plymouth City Council. At paragraph 27 she said this – “But the processing of even sensitive personal data is permitted where it is necessary in order to protect the vital interests of the data subject or another person in a case where consent cannot be given by or on behalf of the data subject (paragraph 3 of Schedule 3); or for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) or for the purpose of obtaining legal advice, or where it is otherwise necessary for the purposes of establishing, exercising or defending legal rights (paragraph 6); or where it is necessary for the administration of justice, or for the exercise of any functions conferred on any person by or under an enactment (paragraph 7). It is common ground, therefore, that the 1998 Act does not prevent the local authority disclosing this information. Nor, however, does it require the authority to do so.”[65]I have already considered the position of Samuel and of his mother. The Data Protection Act itself allows for an exception for the purpose of obtaining legal advice. That overrides the exception to section 7 under paragraph 5 of the Data Protection (Subject Access Modification ) (Health) Order 2000. The exception is only likely to arise in a limited number of cases. Mr Anthony does not now I understand it seek to raise it as a primary ground. He points though to the difficult balancing act which the Respondents are required to carry out.[66]The question therefore is to what extent does that mean that the Respondents are bound to meet a request for information such as the one with which I am concerned. The argument turned in the end on a narrow but important issue. Here the Respondent raised an objection in relation to Samuel which was met by an agreed condition not to permit disclosure to him. The question that arises is on which party the burden lies after the objection is raised to point out how it could be met. Equally so far as Mrs D is concerned, on whom does the burden lie to say whether any objection can be met?[67]I am satisfied that the proper course is as follows. There is a duty to disclose medical records to a person having parental responsibility for a child. The Respondent may well have an objection to raise. It was right and reasonable for the Respondent for instance to say that Samuel might be upset by having matters disclosed by him in confidence discussed by others. He had already made that clear.[68]If however there is a way where that objection can properly be met it is in my judgment for the Respondent to indicate what would satisfy them and meet their duties not to disclose the information. It is not for an applicant to try a series of strategies in the hope that one might appeal to the Respondent.[69]Mr Bright’s skeleton argument met the reasonable objection of the Respondent as they accepted at trial. In relation to that discrete issue I hold that it was unreasonable for the Respondent not to put forward that as a means of meeting a legitimate concern or responding to it when it appeared in the Applicant’s skeleton argument.[70]In relation to the question of Mrs D I find the issue more difficult. Her written consent was not forthcoming. The Respondent raised a proper objection. Are they bound to do no more than raise the objection and then leave an Applicant to see whether they can persuade the court to override the objection?[71]In my judgment the Respondent is entitled to present a proper argument to the court raising legitimate concerns. They are entitled to ask the court to consider whether in the exercise of its discretion those concerns are or are not to prevail. Their appearance therefore at court is not unreasonable provided they have genuine concerns which are properly raised.[72]However that is not the end of the story. It is one thing to point out that there are various objections identifying their nature and the source on which they are based. They might arise under a common law duty of confidence or the Data Protection Act. Having done so and indicated the relevant authorities in my judgment their proper stand is to indicate that these are matters properly to be considered by the court which may or may not in any given case prevail. In this instance having given partial disclosure, there was a refusal to give any further disclosure without a sufficient indication of what could be done to meet their objections or the particular considerations relevant to the court’s determination in relation to Mrs D.[73]In my judgment it would not in those circumstances be right to grant costs to the Respondent. However nor do I think on balance that the opposite course of ordering payment of the Applicant’s costs would be right in this case as, properly set out, a hearing before the court was likely.[74]Taking a broad view of the merits on each side and after looking at all the details to which I have referred I have come to a clear conclusion. It is that in this instance in the exercise of my discretion I should make an order that each party pay their own costs.