JW v Information Commissioner and Nottingham Health Care NHS Trust [2013] UKUT 648 (AAC)

UKUT-AAC

JW v Information Commissioner and Nottingham Health Care NHS Trust

[2013] UKUT 648 (AAC) · 2013-09-12

The NHS Trust did not take part in the hearing although an officer was present.

DECISION

The appeal is dismissed.

For the reasons below, the decision of the First-tier Tribunal is confirmed.

REASONS FOR DECISION

1 The facts of this case are unusual in that the appellant is seeking information about her son, who died some time ago, but she does so in effect as a member of the public. Her application was therefore made under the Freedom of Information Act 2000 (FOIA). Her son, whom I shall call C and who was an adult at the time, died while compulsorily detained in Rampton Hospital, a hospital where he had been resident for a time. The request was made to the hospital authorities, now the Nottinghamshire Health Care NHS Trust (the NHS Trust in this decision).

2 Permission to appeal to the Upper Tribunal was granted by a First-tier Tribunal judge. When I first considered the appeal, it appeared to me that the information powers under the Access to Health Records Act 1990 might be relevant to the appellant. I invited the parties to address me on that issue together with the matters already raised in the appeal. I therefore listed the appeal for oral hearing. Before the hearing I was asked to agree if the respondents’ case could be put by the Information Commissioner alone, the NHS Trust taking no active part in the hearing. Before the First-tier Tribunal it had been the NHS Trust that took the active part while the Information Commissioner did not. However, the NHS Trust offered to have a responsible officer present at the hearing in case counsel for the Commissioner needed instructions. That seemed to me to be an entirely appropriate way of containing the expenses of this appeal given that the Commissioner and the NHS Trust agreed their approach to the appellant’s application. I therefore heard Mr Barrett for the appellant and Miss John in reply. I am grateful to all parties for their handling of the appeal and to counsel for responding to my directions about the 1990 Act.

Background to the appeal

3 The facts of the appeal are straightforward and are not in dispute. Mrs Webber is the mother of her deceased son C. At the time of her son’s death in November 1999 she had been estranged from her son for some time and he had been a compulsory patient at Rampton Hospital. At the time of the death C’s father and sister were also alive, although the father has since died. The sister had had some contact with her brother.

4 Some time later the appellant decided that she needed to know more about the circumstances of her son’s time at Rampton. As a result solicitors acting for the appellant made an extensive application for information from the NHS Trust. The formal request, made on 25 02 2011 was for:

“ … any information relating to [C’s} time at Rampton Hospital, which for the avoidance of doubt is to include:

· Any information held by the hospital documenting {C’s] time at Rampton

· Any information relating to how [C] came to be at Rampton

· Any information held/known by the hospital regarding [C’s] mental state during his time at Rampton

· Any information as to which institute [C] was at prior to Rampton;

· Any tapes/video tapes taken during [C’s] time at Rampton; and

· Any other information held by the hospital which will provide our client with an insight into [C’s] time spent at Rampton, which is not subject to a duty of confidence”

5 During the course of the exchanges of correspondence that followed this letter:

(a) the NHS Trust asserted that it would deal with the information under the Access to Health Records Act 1990 if Mrs Webber was the next of kin or if the next of kin assented;

(b) C’s sister asserted that she was her brother’s next of kin and that she refused to agree to C’s mother having access to the records;

(d) Mrs Webber declined to exercise any rights she had to become C’s personal representative;

(e) the NHS Trust declined to provide any formal information to Mrs Webber under FOIA asserting rights under section 41 (breach of confidence) although an officer offered an informal discussion with her; and

(f) Mrs Webber declined to accept the offer of informal discussion.

It was common ground before the First-tier Tribunal that there was no personal representative appointed to C’s estate but that if application were made the appellant would have priority as a parent over any claim by a brother or sister (Non-contentious Probate Rules 1987 (SI 1987 No 2024)).

6 In other words, an impasse was reached. The result was that the Information Commissioner was asked to look into the matter. The Information Commissioner declined to assist the appellant in the way she requested so she took the matter to the First-tier Tribunal. The First-tier Tribunal also declined to help her so the matter has now come before me. However, unlike the Commissioner and the First-tier Tribunal I can only examine any alleged errors of law by the First-tier Tribunal. I cannot consider the whole issue afresh.

The First-tier Tribunal decision

7 The decision of the Commissioner was stated fairly briefly. It accepted that the NHS Trust was entitled to rely on section 41 of the FOIA (information provided in confidence) if the conditions were met. In so deciding, the Commissioner decided that the information was confidential and that the public interest in disclosure was outweighed by the public interest in maintaining the information as confidential. The Commissioner did not consider it necessary to consider the separate exemption under section 40 (personal information).

8 When the appellant sought to appeal against this decision, the Commissioner put in a robust defence of the decision and invited the First-tier Tribunal to strike out the application. This was refused after the views of the parties had been considered and the First-tier Tribunal listed the case for hearing.

9 It is clear from the papers before me that the First-tier Tribunal and the parties took pains to ensure that all relevant issues were considered ahead of and then at the hearing. This included full witness statements from the appellant and from the then executive director of forensic services and chief officer for high secure services for the NHS Trust. However, no steps were taken to provide the First-tier Tribunal with a closed bundle, or to request that the First-tier Tribunal be provided for its own purposes with the information requested or any of it.

10 The First-tier Tribunal rightly focussed its decision on the application of section 41 to the facts before it. Section 41 provides:

“(1) Information is exempt information if –

(a) it is obtained by the public authority from any other person (including another public authority), and

(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.”

11 For completeness it should be mentioned that section 2(3) of FOIA provides that any exemption under section 41 is an absolute exemption and that therefore there is no duty to disclose information protected from disclosure by that section.

12 The First-tier Tribunal considered the application before it without having seen any of the evidence covered by the request. This was, it records, because no application was made for any closed evidence or bundle. But the tribunal considered than any such consideration would be barren as any information so produced would in the tribunal’s view have come from C.

13 The tribunal also considered that the obligation of confidence arose in this case because of the relationship of patient and those caring for the patient. Further, the tribunal considered that the width and terms of the information request were such that any information received otherwise than under that relationship would fall outside the information request.

14 It then turned to the issue whether there was an actionable basis for any breach of confidence. In so doing it took into account both

article 8 of the European Convention on Human Rights

and relevant caselaw. Having rehearsed the evidence, the tribunal concluded that the public inte4rest in disclosure did not outweigh the public interest in maintaining confidentiality. It followed that the NHS Trust was entitled to rely on section 41.

Grounds of appeal

15 Mr Barrett, who represented the appellant before the First-tier Tribunal, submitted four grounds of appeal against that decision:

(1) there was no actionable breach of confidence at the date disclosure was refused;

(2) information was not obtained from C;

(3) each item of information must be considered separately on its merits;

(4) the tribunal erred in its approach to the balance of interests.

16 A First-tier Tribunal judge considered that the tribunal had not erred on any of these grounds but also considered that each of the issues was arguable. The nub of the issue was that there was an issue of considerable public importance in considering the right of a close relative to have access to records maintained by an institution in which a deceased was resident at the time of death by suicide.

The legal background

17 Before turning to these issues, it is in my view appropriate to note other ways in which the information sought by the appellant, or some of it, could or might come on to the public record. That is in my view particularly important where the application for information is not specific but is, as here, a trawling exercise that could potentially encompass considerable amounts of information. It is all the more important where, again as here, the information request in effect demands specific and individual consideration of each and every potential item of information produced.

18 It is therefore to be noted that some of the information requested for the appellant did or could come into the public record by other means.

19 The first point is that there must in practice be a coroner’s inquest into any suicide. No mention of this is made by the First-tier Tribunal. The decision of the Commissioner records that in this case only “very limited information” was held by the Hospital Coroner’s office. It may be that the coroner held an open inquest into the death at a public hearing, in which case of course anything heard at that hearing was in the public domain. But the papers do not suggest that even if this was so that there is any continuing record of the hearing. As C’s death occurred a decade before the application for information was made, this is not surprising. It is also not surprising given the year in which the death occurred that when the Commissioner conducted a web search to see if any relevant information was in the public arena, nothing was found. It may be that there was a local press report at the time, but the appellant does not appear to have explored this approach. It is too late for that to be raised as an issue in this appeal as that is a question of fact. I mention it as a general matter rather than as directly relevant to this appeal. In any event, the appellant’s own evidence to the First-tier Tribunal included evidence that she had been shown the Coroner’s report, although it is not in evidence in this appeal. Nonetheless, it is relevant to any policy consideration that the law requires a judicial officer, the local coroner, to conduct an investigation into any death such as that of the appellant’s son, and to satisfy himself or herself about the circumstances of that death. If circumstances warrant this, that may involve a public hearing so placing any issue rehearsed at that hearing in the public domain. And it involves a report, as the appellant is aware in this case.

20 The second point is whether the Access to Health Records Act 1990 provided the appellant or any other person with access to the required information about C. I raised this matter for consideration again as the grant of permission to appeal to the Upper Tribunal was on the basis of the general issues raised by the appeal rather than the specific issues about C.

21 The 1990 Act was a predecessor to FOIA and has now been largely replaced by it. The one issue on which it has not been replaced is that of records about deceased individuals. Three sections of the Act are relevant here, the truncated version of current rights under the Act being clear from section 3, which provides, for England and Wales:

“3 Right of access to health records.

(1) An application for access to a health record, or to any part of a health record, may be made to the holder of the record by any of the following, namely—

…

(f) where the patient has died, the patient’s personal representative and any person who may have a claim arising out of the patient’s death.

(2) Subject to section 4 below, where an application is made under subsection (1) above the holder shall, within the requisite period, give access to the record, or the part of a record, to which the application relates—

(a) in the case of a record, by allowing the applicant to inspect the record or, where section 5 below applies, an extract setting out so much of the record as is not excluded by that section;

(b) in the case of a part of a record, by allowing the applicant to inspect an extract setting out that part or, where that section applies, so much of that part as is not so excluded; or

(3) Where any information contained in a record or extract which is so allowed to be inspected, or a copy of which is so supplied, is expressed in terms which are not intelligible without explanation, an explanation of those terms shall be provided with the record or extract, or supplied with the copy.

(4) No fee shall be required for giving access under subsection (2) above other than the following, namely—

(a) where access is given to a record, or part of a record, none of which was made after the beginning of the period of 40 days immediately preceding the date of the application, a fee not exceeding [such maximum as may be prescribed for the purposes of this section by regulations under section 7 of the Data Protection Act 1998]; and

(b) where a copy of a record or extract is supplied to the applicant, a fee not exceeding the cost of making the copy and (where applicable) the cost of posting it to him.

(5) For the purposes of subsection (2) above the requisite period is—

(a) where the application relates to a record, or part of a record, none of which was made before the beginning of the period of 40 days immediately preceding the date of the application, the period of 21 days beginning with that date;

(b) in any other case, the period of 40 days beginning with that date.

(6) Where—

(a) an application under subsection (1) above does not contain sufficient information to enable the holder of the record to identify the patient or,. . . , to satisfy himself that the applicant is entitled to make the application; and

(b) within the period of 14 days beginning with the date of the application, the holder of the record requests the applicant to furnish him with such further information as he may reasonably require for that purpose,

subsection (5) above shall have effect as if for any reference to that date there were substituted a reference to the date on which that further information is so furnished.

22 This is subject to a general exclusion under section 4(3):

“4 Cases where right of access may be wholly excluded.

(3) Where an application is made under subsection (1)(f) of section 3 above, access shall not be given under subsection (2) of that section if the record includes a note, made at the patient’s request, that he did not wish access to be given on such an application.”

23 Finally, section 8 provides for appeals. Section 8(5) provides that any appeal in England and Wales is to the High Court or a county court and not to a tribunal. No appeal was made in this case, and indeed no appeal could be made. On either basis, the Upper Tribunal has no jurisdiction over any decision made, or not made, under the 1990 Act. I can therefore consider the matter no further than noting that this course of action is open to someone with entitlement under the 1990 Act. That means, in my view, it is also relevant to note that it exists as a specific if limited remedy to some aspects of the application made for the appellant in this case if it is correct that she was entitled as, and could have applied as, C’s personal representative.

24 While that point can be taken no further in this appeal, it is again to be noted that these rights and procedures do exist and could have been used in connection with records held about C had the appropriate individuals sought to exercise those rights.

The application of FOIA to this case

25 The immediate question posed by this appeal is whether, in that context, the appellant can seek all or any of the information about her son through FOIA regardless of whether any of that information was or is available through either of the other legal routes set out above. It is common ground that this depends on whether the NHS Trust is correct in relying on the absolute exemption in section 41 of FOIA.

26 I summarised above the four grounds on which Mr Barrett argued that the First-tier Tribunal’s decision confirming the application of section 41 was wrong. All were resisted by Miss John for the Commissioner before me, with the agreement to his argument expressed in general terms by the NHS Trust. I must now turn to those arguments.

A general request or a series of requests?

27 Although listed as Mr Barrett’s third argument it seems to me it must be taken first. If there is anything in the argument, then it would seem at least open to the further argument that there should have been a closed bundle of all the information put in issue in the appeal. Otherwise I do not see how any differentiation can take place. However, the appeal has proceeded without any such bundle. Further, it is clear that the Commissioner took the view in his decision (under reference FS50416397) that the information requested was in entirety to be regarded as information restricted to the relevant medical and other staff concerned with C and protected by section 41. I can see nothing to suggest any argument about differentiation was raised at that stage.

28 No point was made about differentiation in the grounds of appeal to the First-tier Tribunal or in the submissions to the First-tier Tribunal. This was in part, as the First-tier Tribunal observed in its decision, because the appellant was not legally represented at that stage. However, the First-tier Tribunal clearly had in mind when making its decision that there may be issues of differentiation. I take that from the reference in several places in the decision to the phrase “much of the information”. The tribunal was, in my view, entitled to take that view as it had not seen any of the information so inevitably was generalising to some extent about unknown aspects of the information requested. Further, for the reasons the tribunal sets out, Mr Barrett was unable to derive any support for an argument about differentiation from the Trust’s witness. (See paragraph [12] of the First-tier Tribunal decision).

29 The First-tier Tribunal did not investigate that matter further itself because it formed the view that it would be a “barren” exercise. It sets out the reasons for this view in paragraph [13]. Mr Barrett sought to attack that by reference to “ordinary common law principles”. Miss John resisted that approach in the circumstances of this case, while agreeing that the approach might be appropriate in other cases. In her submission it followed from the very nature of the application to the NHS Trust that the information was within the scope of section 41.

30 I see no error of law in the approach taken by the First-tier Tribunal on this point. It was perhaps in part a result of the failure at any stage of the appellant or those representing her to ask for a closed bundle to be produced or to identify any plausible differentiation in the information sought. Nonetheless it is the task of the tribunal to decide the case before it unless it sees reason to investigate further. I see nothing here that suggests that the tribunal erred in law in not investigating further but proceeding as it stated in paragraph 13. Its point about proportionality at the late stage at which the point arose is of itself an adequate basis for proceeding as it did. The one point that is unclear from that paragraph is the extent to which the First-tier Tribunal stated it was assuming matters rather than deciding them. The essential question was whether it could see grounds for pursuing any argument that some of the information sought was not within section 41. That is inherently a matter of fact. I can see no basis on which the approach of the Tribunal can be challenged at this stage in this case on that issue. Accordingly, the First-tier Tribunal proceeded correctly in considering the information request as a whole without seeking to differentiate the individual items of information that were or might be within the scope of the request. I accordingly approach this decision on that basis.

From whom was the information obtained?

31 I agree with Miss John that this is the first general issue to be addressed. It arises from section 41(1)(a). The first condition for the section 41 exemption to apply is that:

“it is obtained by the public authority from any other person (including another public authority”

32 It follows from the above analysis that this is to be applied generally and without differentiation to the information sought from the NHS Trust, which is plainly within the scope of the section.

33 Mr Barrett’s argument on this point is that section 41 does not apply to information generated or created by the NHS Trust’s own employees. (I leave aside as not relevant at this stage any argument that other exemptions may come into play if this is so).

34 I agree with Miss John that this aspect of the appellant’s appeal is based on a confusion between the information sought and the way in which that information has been recorded. This confusion is indeed apparent in the original information request (including a request for “information documenting” certain items and for tapes or video tapes. It is also apparent in the appellant’s witness statement. This contains repeated requests that the appellant see “the records” and for the disclosure of documents. There is also a reference to the appellant wishing to see if documents contain references to her.

35 It is clear law that any entitlement arising under FOIA is a right to information not a right of access to particular records. Arguments may arise in individual cases about the format in which such information is given, but aside from such arguments there is no power to demand any specific document or record be produced. It is therefore irrelevant that someone who may be an employee of the NHS Trust has chosen to record information about C in a certain way. It is the information, and only the information, that can be the subject of an information request. For the same reason, the exemption is applied to the information, not the way in which the information is held. Applied to this case, I agree with Miss John that the reference to information created by employees is wrong. The documents and records may have been created in that way, but it is the information within them that is the only relevant issue in this appeal.

36 If the original information request is looked at from that standpoint, some of it falls away immediately. (See, for example, the request for information documenting C’s time at Rampton and the request for any tapes or video tapes taken.) So does reference to other information, such as any about the appellant herself. It is only the balance that falls to be considered under section 41.

37 The First-tier Tribunal considered that all such information obtained while C was in Rampton was of its very nature obtained from him. I agree with Miss John that Mr Barrett’s challenge to this can be tested by reference to the medical records of C. Should section 41 exemption fall away when C (or any other patient in any other hospital) dies, leaving anyone affected by this to have to consider other exemptions, if any? Could, for example, journalists or investigators seek the records held by a hospital about any patient (or all patients) who died in that hospital? If so, why was the power in the 1990 Act retained? I put that example because it is always to be remembered that FOIA is about putting information into the public domain. I do not forget of course the very specific reason why the appellant makes her request about C, her son, in this case, but it is nonetheless an application to put the information into the public domain.

38 I also agree that nothing of importance can be read into the use of “obtained”. Another way of putting the term would be “to come to have”, whether that was active or passive. So, for example, the informal observations by a doctor of a patient will result in this sense in information obtained from the patient.

39 On that basis, and taking the approach to differentiation taken by the First-tier Tribunal, I entirely agree that the First-tier Tribunal was entitled to regard all the information held by the NHS Trust and its employees about C as information obtained from C.

40 I therefore reject that ground of appeal.

Would disclosure be actionable?

41 I now turn to the first ground of appeal, namely that the information sought by the appellant, if disclosed by the NHS Trust, would not give rise to any actionable breach of confidence. This arises from the conclusion of the First-tier Tribunal that the second condition in section 41(1) was also met in this case.

42 Mr Barrett sought to resist the application of this test both before the First-tier Tribunal and before me. Before the First-tier Tribunal he argued that the only person who could take an action against the NHS Trust was the appellant, if she became a personal representative. But she had not done so. And even if she did take that step, the action would come from her. So she would be suing herself. That was rejected by the First-tier Tribunal which declared itself satisfied that the application of section 41 could not be avoided on the ground that there was no personal representative.

43 Mr Barrett returned to his argument before me. He first made the point that the actionability was to be established at the time of the application. I have no issue with that. He then argued that the plain and ordinary meaning of section 41 was that it only applied if a public authority could establish that disclosure of the information would expose the authority to a successful claim for breach of confidence.

44 Miss John submitted that this was too narrow an approach to section 41(1)(b) both as to the time frame and as to the test of actionability. I agree. I also consider that the argument for the appellant focuses too narrowly on the particular circumstances of the appellant’s own application. The test must be applied generally to any information that comes within the potential scope of the provision, so for example it must apply equally to any release of any information within the scope of the section about any deceased person by any public authority.

45 Mr Barrett sought to buttress this by a generalised reference to settled case law and the proper interpretation of the section. I found that entirely unpersuasive, as he did not point to any convincing basis for that general argument. There is much learning on breach of confidence (see in particular the second edition of Gurry on Breach of Confidence by Aplin and others, (Oxford University Press, 2012)). It is clear from this that the equitable basis for actions for breach of confidence extends beyond express and implied contractual limits.

46 Approaching the matter more generally, the underlying information is patently intimate personal information about C. Much, if not all, of it would plainly be obtained in circumstances where C could assume that it would be treated in confidence. And there is considerable law about the kind of information relevant in this case. As no authority was cited to me, I make only brief mention of one relevant case, X Health Authority v Y , cited in Gurry at paragraph 9.67, where Rose J stated:

“records of hospital patients should … be as confidential as the courts can properly keep them in order that the claimants [the hospital] may be free from suspicion that they are harbouring disloyal employees.”

This is separate from, but additional to, the professional obligations on doctors and others in a hospital and from the statutory obligations on NHS bodies to keep records confidential save in specific circumstances.

47 In that context, I take the view that the First-tier Tribunal was entitled to regard any disclosure of this information as actionable if in general terms it was the kind of information that would be open to action (whether based on contract or in equity) upon improper disclosure. That plainly applies to this information. Accordingly, I take the view that the First-tier Tribunal also approached this issue correctly.

A public interest defence?

48 The issue of actionability is subject to the general proviso that an action can be defended by reference to the public interest. Mr Barrett accepted that this was a matter rightly considered by the First-tier Tribunal but on which it erred in the way it balanced the rights of the appellant to the information against the arguments of the NHS Trust for maintaining confidence. Before me Miss John strongly supported the approach of the NHS Trust on this point.

49 The question for me, when turning to policy issues, is not whether I would have reached the same conclusion as the First-tier Tribunal in striking a balance between competing interests, but whether the First-tier Tribunal approached the exercise as a rational tribunal. Did it take into account all the issues raised before it? Did it ignore any issues that it should not have ignored or take into account any improper issues? Did it reach its own decision on those issues? Did it adequately identify what it had decided and how it had decided it?

50 The decision of the First-tier Tribunal examines this issue in some detail, the discussion being set out in paragraphs [17] to [23] with its conclusion against the appellant at paragraph [24]. I see no point in reciting that decision in detail. It is clearly based on established authority and takes fully into account

Article 8 of the European Convention on Human Rights

. It recites the factors put into the balance by the appellant. It had in mind all the factors which Mr Barrett sought to argue it approached wrongly. But it reached the conclusion that the public interest in disclosure did not outweigh the public interest in maintaining confidentiality. I see no error of law in that. Indeed, in my view references as above to the relevance of the jurisdiction of the coroner, to the availability of a remedy under the 1990 Act, and to the duties imposed by law and by professional obligation on NHS Trusts and those that staff them would all buttress the public interest in maintaining confidentiality both in the courts and under section 41.

51 I must therefore dismiss the appeal and confirm the unanimous decision of the First-tier Tribunal itself confirming the decision of the Information Commissioner.

David Williams

Upper Tribunal Judge

12 09 2013