Disclosing medical records
Charles Foster discusses the patient's right to be heard
All agree that confidentiality in medical records is crucial. If disclosure of medical records is sought for the purposes of criminal litigation, should the patient not have a right to be heard? Intuitively the answer seems obvious: of course the patient should. And indeed that was the gist of the decision of the Divisional Court in R (TB) v Stafford Combined Court and (1) CPS and (2) South Staffordshire Healthcare NHS Trust  EWHC 1645 (Admin). But that conclusion sits uneasily with Part 28 of the Criminal Procedure Rules. The judgment of the Administrative Court is an urgent call for revision of that Part, an important restatement of some central principles of medical confidentiality and a timely reminder that Art 8 of the ECHR has some procedural corollaries.
The issue arose in a context familiar to all criminal practitioners. TB was the 14-year-old complainant in a case in which W was alleged to be guilty of unlawful sexual activity. Prior to the trial she had been receiving psychiatric treatment from the South Staffordshire NHS Trust. She had taken overdoses of ibuprofen and paracetamol. W's solicitors sought a witness summons requiring production by the Trust of TB's medical records on the grounds her medical history might undermine her credibility.
An application for such a witness summons has to be made in accordance with Part 28 of the CPR, which require the application and its supporting evidence to be served on the party to whom it is directed '“ here, the Trust. The Rules do not require service on the very person (here. TB) whose confidence would be breached by disclosure. The judge duly heard counsel for W and for the Trust and ordered disclosure.
TB sought judicial review, claiming she was entitled to be served with the application and to make representations, and asserting that the Crown Court acted unlawfully in proceeding as it had. The Administrative Court allowed her claim. There were two broad reasons and overlapping reasons for doing so: the first resulted from the ECHR; the second was a consequence of the CPR. The court went back to the first principles of the law of confidentiality.
General principles of confidentiality
Information about a person's health and treatment is confidential and plainly covered by Article 8 of the ECHR. Not only is the preservation of confidentiality a fundamental human right, but it is necessary in order to ensure patients' and the public's confidence in the medical profession. If patients think their medical secrets are not secure, they may be deterred from seeking the medical help they need or being as frank with their doctors as they should be. That might endanger not only individual patients but also the public at large: see Campbell v MGN Ltd  2 AC 457, per Baroness Hale at para 145. The confidentiality of a patient's medical records belongs to the patient. Confidentiality in psychiatric notes was particularly important: see Ashworth Hospital Authority v MGN  UKHL 29 at para 63. The confidence in medical records belongs to the patient, not to the holder of the records. It follows from this that the Trust (in this case) could not properly be the mouthpiece of the patient: the Trust might legitimately have very different interests from the patient.
Accordingly the duty of confidentiality should not be overridden in favour of disclosure unless disclosure was proportionate, in accordance with the law and (to take the words of clause 2 of Art 8), necessary for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In summary: did the public interest in the disclosure of the records outweigh the public interest in the maintenance of the confidence?
Article 8 mandates procedural fairness
In Re G (Care: Challenge to Local Authority's Decision)  2 FLR 42, Munby J had trenchantly said: ''¦Procedural fairness is something mandated not merely by Art 6, but also by Art 8.' The court in TB agreed:
'Although Art 8 contains no explicit procedural requirements, the court will have regard to the decision-making process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Art 8. The process must be such as to secure that the views of those whose rights are in issue are made known and duly taken account of. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the person whose rights are in issue has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and privacy and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Art 8.' (para 23)
The effect of the overriding objective
Part 1.1 of the Criminal Procedure Rules provides that the overriding objective of the Rules is to ensure criminal cases are dealt with justly. This includes respecting the interests of witnesses and victims. The court held that although the Rules did not expressly oblige the court to give notice of an application to a person in TB's position, the overriding objective required it.
Where this leaves the law
This is a significant and repercussive decision. It will not only concentrate the minds of the Criminal Procedure Rules Committee, but it will bring about an immediate change in procedure in many criminal cases. Many representations by persons whose records are sought will have to be listed. Should the decision extend to all medical records? May LJ could see no reason why not. Should it not apply to education records, social services documents, tax documents in the hands of accountants and so on? In principle it should.