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Cite as: [2002] 2 FCR 357, [2002] 1 FLR 1045, [2002] Lloyd's Rep Med 139, [2002] Lloyds Rep Med 139, [2002] Fam Law 342, [2002] 2 All ER 780, [2001] EWCA Civ 2014

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Health Authority v X & Ors [2001] EWCA Civ 2014 (21st December, 2001)

		Neutral Citation Number: [2001] EWCA Civ 2014

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION
(MR JUSTICE MUNBY)

Royal Courts of Justice
Strand,
London, WC2A 2LL

21 December 2001

B e f o r e :

LORD JUSTICE THORPE
LORD JUSTICE LAWS
and
MR JUSTICE HARRISON
____________________

A HEALTH AUTHORITY
Appellant

v

X and Ors
Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

PHILIP HAVERS QC and ANGUS McCULLOUGH (instructed by Messrs Le Brasseur J Tickle of London WC2B 5HA) appeared for the appellant.
DAVID PANNICK QC and ANGUS MOON (instructed by Legal Services, Medical Protection Society of London W1M 0PS) appeared for the respondent.
TIM WARD (instructed by Legal Services, Association of Community Health Councils of England and Wales) appeared as an interested party.
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

THORPE LJ:

There was a long and complex public law Children Act case tried by Hughes J in the Family Division which culminated in his judgment of 16 March 2000. When the case was over the local authority reported to its area health authority facts that had emerged in the case which it considered relevant to the discharge of the authority’s duties. The local authority also applied to Hughes J for permission to release to the health authority a selection of the papers in the case. The judge ruled that the application should be made by the health authority. Accordingly by an application of 30 January 2001 the health authority sought an order for the production of both specified case papers and the GP records of two named individuals who had been involved in the case. For reasons which are not clear to me the application was not listed in front of the trial judge but in front of Munby J. He heard counsel for the health authority and counsel for the respondent doctors. On 10 May he handed down his judgment and made his orders upon the application.

His learned and lucid judgment is now reported at [2001] Lloyd’s Rep Med 349. His first conclusion was that the health authority were entitled to the disclosure of the selected case papers, including the judgment of Hughes J. His second conclusion was that the authority was entitled to an order requiring the respondent to produce to the authority within seven days the medical records relating to the two named patients, whose consent to that production had been refused or had not been obtained. However his conclusion was that in each instance disclosure should be subject to express conditions set out in the second schedule of his order and designed to ensure that as far as possible the health authority should maintain the confidentiality of the documents and not disclose them to any other person without prior permission of the court. It is against the imposition of those conditions that the health authority appeals. In reality their challenge is directed to the third condition:

"Save with the prior leave of this court the authority shall not disclose any of the documents or communicate any information contained in them to any person other than

(a) to a medical discipline committee or the National Health Service Tribunal or the General Medical Council and

(b) in accordance with regulations 4 and 5 of the National Health Service (Service Committees and Tribunal) Regulations 1992, SI 1992 No 664, as amended."

The appeal is brought with leave of the judge. With the leave of this court the General Medical Council has lodged evidence in support of the respondent’s case. The respondents have received further support from the Association of Community Health Councils for England and Wales. The Association also filed evidence and appeared at the hearing by counsel, Mr Ward, who adopted the submissions of Mr Pannick QC for the respondents.

The case for the appellant authority was skilfully argued by Mr Havers QC. The statutory framework for the application for the disclosure of the medical records in relation to the two patients who had not consented to production is fully and carefully set out in the judgment of Munby J. Accordingly Mr Havers was able to restrict himself to a reference to Regulation 36(6) of the National Health Service (General Medical Services) Regulations 1992 as amended. Regulation 36(6) provides:

"A doctor shall send the records relating to a patient to the Health Authority -

(a) as soon as possible, at the request of the Health Authority; or

(b) where a person on his list dies, before the end of the period of 14 days beginning with the date on which he was informed by the Health Authority of the death, or (in any other case) before the end of the period of one month beginning with the date on which he learned of the death."

Mr Havers’ first submission was that that statutory language was sufficiently clear and unqualified to override the ordinary duty of confidentiality owed by a GP to the patient. He submitted that that construction was supported by authority, namely the case of Parry-Jones v The Law Society [1969] 1 Ch 1 and the European case of MS v Sweden (1999) 28 EHRR 313, particularly paragraphs 41-44 of the judgment of the court. Mr Havers accepted the conclusion of Munby J that its right to demand production under Regulation 36(6) was subject to three preconditions set out in paragraph 71 of his judgment, namely:

"(i) if the documents are bona fide and reasonably required for the purpose of the proper exercise by the Authority of one of its functions under Part II of the 1977 Act; and

(ii) if, where the documents are to be used otherwise than in the particular patients best interests - eg for disciplinary or regulatory purposes - there is a compelling public interest in their disclosure which satisfies the usual Convention criteria of ‘necessity’ and ‘proportionality’; and

(iii) if there are effective and adequate safeguards against abuse, including effective and adequate safeguards of the particular patient’s confidentiality and anonymity."

Mr Havers submitted these preconditions are comparable to the built-in safeguards accepted by the Strasbourg Court in MS v Sweden in rejecting that applicant’s claim to a breach of her convention rights.

Mr Havers attacked Munby J’s statement of the doctor’s duty of confidentiality which appears thus at paragraph 9 of his judgment:

"Now of course in the final analysis .... Dr X’s ultimate obligation is to comply with whatever order the court may make. But prior to that point being reached his duty, like that of any other professional or other person who owes a duty of confidentiality to his patient or client, is to assert that confidentiality in answer to any claim by a third party for disclosure and to put before the court every argument that can properly be put against disclosure. All the more so when, as in the present case, he knows, because he has asked, that his patient or client is refusing to consent to disclosure."

Mr Havers’ submission is that far from the doctor having any duty to require the court’s determination, his plain duty is to comply with a Regulation 36(6) request save in the unlikely event that he has reason to doubt compliance with any one of the three preconditions set by Munby J in paragraph 71 of his judgment.

Mr Havers submits that were we to uphold the doctor’s duty as defined by Munby J there would be a number of undesirable consequences. First applications to the court are expensive and impractical. Second they involve inevitable delay which could not be bridged in any case of urgency, still less in a case of emergency. Third the creation of an unnecessary superstructure on the production mechanism created by Regulation 36(6) would not only impede the health authority but any successive holder who would in turn be obliged to assert confidence and to make yet another application to the court.

In summary Mr Havers submitted that the National Health Service depended upon free internal exchange of confidential information. He warned that the service would grind to a halt were Munby J’s judgment extensively construed and applied.

Mr Havers’ alternative submission was that the judge was both wrong in principle and unjustified in imposing upon the health authority the conditions set out in Schedule II to the judgment. In support of that submission he advanced three reasons. The first was that there are already more than sufficient safeguards for the patient. He listed and elaborated in turn:

(a) The duty of confidence as defined by our domestic law.

(b) Article 8 Convention rights as recognised in the case of MS v Sweden as well as the case of Z v Finland (1998) 25 EHRR 371.

(d) The strong emphasis on confidentiality given in the Department of Health guidance : The Protection and Use of Patient Information - Guidance from the Department of Health HSG (96) 18/LASS L (95)5 as updated.

(e) The creation of the structure of Caldicott guardians created in response to recommendation 3 of the Caldicott report of December 1997.

Secondly Mr Havers advanced the negative proposition that there was no evidence to suggest that the health authority was unaware of its obligations or that it was in breach of its own arrangements.

Thirdly he submitted that the consequences of imposing the conditions would be prejudicial to the health authority and disproportionate to the underlying objective of Regulation 36(6). In support of this third submission he submitted a bundle of papers to demonstrate a subsequent consequence of the imposition of the Schedule II conditions. In the continuing management of the aftermath of the proceedings before Hughes J there had been a statutory review and his clients had been obliged to launch an application for permission to bring into the Part 8 review documents produced pursuant to Munby J’s order. The additional bundle which he submitted contained an application served on Dr X for permission and a directions order made by Bracewell J. However when pressed Mr Havers conceded that this third ground was his last and he did not seek to make too much of it.

In responding to Mr Havers’ submissions Mr Pannick essentially submitted that Munby J had been correct in principle because the need for patient protection required a decision of a High Court judge to decide the balance between the private/public interest in confidentiality and any competing public interest. Such a decision had to be objective and could not be left to the health authority acting in good faith. Alternatively Mr Pannick submitted that the imposition of conditions by Munby J was a proper exercise of a judicial discretion without any error of principle and accordingly not a discretion with which this court should interfere.

As to Mr Havers’ first ground Mr Pannick emphasised the importance of the doctor’s duty of confidentiality. As explained in Z v Finland it is not just the private interest of the patient which is at stake but the wider interest of the public in the proper treatment of transmissible diseases which depends in part upon the individual’s sense of security in seeking help and in revealing private matters. Mr Havers’ construction would impose an impossible burden on the GP in assessing whether or not the preconditions are satisfied without the requisite expertise or information. It would in practice amount to an absolute duty to disclose which would in turn deprive the court of any opportunity to strike a balance. He submitted that Parry-Jones v The Law Society has been overtaken by European jurisprudence and that the case of Z v Finland emphasises the importance attached to the role of the court in weighing whether the state is in breach of Convention rights.

As to Mr Havers’ spectres of costs and delay, whether in support of his first or second principal submissions, Mr Pannick foresaw that the majority of the applications would proceed by consent at little cost and urgent cases would be accommodated.

As to Mr Havers’ second principal submission, the attack on the imposition of conditions, Mr Pannick submitted that the central issue remains who should exercise the balance when a conflict of interests arises. If that exercise must be performed by the judge then none of Mr Havers’ three objections arose. But in any event the safeguards advanced were insufficient. The domestic law of confidence was not yet clear. Of the two European cases greater account should be taken of the approach of the court in the case of Z v Finland. The Data Protection Act 1998 contained many exceptions, as the Department of Health guidance demonstrated. Finally Mr Pannick submitted that the arrival of Caldicott guardians was no substitute for judicial control. The concern was not that health authorities might act in bad faith or negligently but that a proper exercise of such a balance must be an independent exercise.

I have summarised the argument in this court in some detail partly to demonstrate that it canvasses wide ranging issues that I do not consider to be directly raised in the present case. The strict confidentiality attaching to litigation material in children’s cases has long been upheld both according to common law and statute. Of course that strict confidentiality is not absolute. There are many instances in which it must yield to a conflicting public interest. Most commonly the reported cases consider the release of case papers in Children Act proceedings for use in a criminal prosecution that requires investigation of the same facts and circumstances examined in the prior Children Act proceedings. There are a number of reported cases at first instance. In this court two significant cases are those cited by Munby J, namely Re D (Minors)(Wardship: Disclosure) [1994] 1 FLR 346 and Re C (A Minor)(Care Proceedings: Disclosure) [1997] Fam 76. There is also the case of Re L (A Minor)(Police Investigation: Privilege) reported in the House of Lords at [1997] AC 17. At that level the decision set the balance between the claim of the area police authority to a sight of an expert report to assist in their criminal investigation and the mother’s claim to litigation privilege in respect of the report. However in this court the judgment of the Master of the Rolls gives clear guidance as to how the balance should be set where either the prosecution or the defence seek the release of papers in Children Act proceedings for the proper conduct of a pending criminal case. Here we are not concerned with the administration of criminal justice but with possible disciplinary proceedings. Within the appellant’s evidence in the court below was the explanation that:

"The Authority may wish to investigate through a Discipline Committee or NHS Tribunal .... :

(i) the possibility that there has been serious over-dispensing of medicines;

(ii) the completeness of the records .... ;

(iii) whether there may have been an inappropriate delegation of responsibility in relation to the medical care of patients .... ;

(iv) the adequacy of the consent sought before performing medical procedures ...."

There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of professional disciplinary hearings, particularly in the field of medicine. In the application of the authorities which he had cited Munby J properly ordered the release of the case material, namely the list A documents.

Although the list B documents are separately categorised because of the application of Regulation 36(6), the list B documents were inextricably connected in two respects: first because the patients in question had been directly or indirectly involved in the Children Act proceedings and second because, as Munby J recorded:

"There is or may be a certain amount of overlap between the list A and the list B documents in as much as some of the general practitioner records were apparently before the judge who heard the care proceedings."

In those circumstances in my opinion the objection to production fell to be decided in accordance with the principle that determined the application for the release of the list A documents, namely whether the public interest in effective disciplinary procedures for the investigation and eradication of medical malpractice outweighed the confidentiality of the records. I do not regard the application for production much enhanced by the Regulation 36(6) duty. A balance still had to be struck between competing interests. The balance came down in favour of production as it invariably does, save in exceptional cases.

In relation to the attachment of conditions to the orders for release and production Munby J cited and followed the prior decision of Cazalet J in Re A (Disclosure of Medical Records to the GMC) [1998] 2 FLR 641. In that case Cazalet J heard an application by the General Medical Council for the disclosure of case papers pursuant to its statutory duty to investigate allegations of serious professional misconduct. To that extent there is common factual ground. However the majority of the judgment of Cazalet J deals with practice issues which are of no relevance to what we decide. But in the course of his judgment Cazalet J stated at 646C:

"It must be emphasised that the protection of the child’s anonymity in the course of any hearing before the GMC Conduct Committee will always be a matter of primary importance and necessary conditions, protection measures and assurances as to this will almost always be required from the GMC."

In my opinion Cazalet J was right to claim the power to attach conditions to an order directing the release of case papers in Children Act proceedings to a third party. Without that power the court would be left with a crude choice between directing or refusing release. Striking a balance between competing public interests, often across the interface of distinct justice systems, requires much more sophisticated powers. In my opinion Munby J was correct in law to claim that power and equally correct to proceed to a discretionary exercise of that power having regard to the relevant facts and circumstances insofar as they were revealed to him.

I add that qualification since Munby J was not the judge who had tried the Children Act proceedings. Accordingly he had no option but to deal with the application in abstract and without reference to the concrete context. Obviously the knowledge that Hughes J had gained from conducting the trial would have been of great advantage in determining the health authority’s application. Therefore despite the administrative difficulties that may result I am of the strong opinion that where the trial has been conducted by a judge of the Division, then a subsequent application by a third party for the release of case papers must be to that judge rather than to another judge of the Division, absent exceptional circumstances.

Accordingly in my judgment this appeal can and should be decided within those parameters. I would not want this judgment to be construed or used as laying down any general propositions beyond the context of Children Act proceedings and their aftermath.

However I would add that I am not persuaded that Munby J overstated the doctor’s duty to his patient in paragraph 9 of his judgment. I accept the analysis that the only real issue in the present appeal is whether the conflict between the private/public interest in the confidentiality of medical records and some other public interest should be decided by the health authority or a judge of the Division. I accept Mr Pannick’s submission that the importance of the resolution of such a conflict requires the independence of a judge. I conclude that the spectres developed by Mr Havers, cost and delay and administrative overload, are no more than speculations which good sense and management can contain. I do not accept that the safeguards defined by Mr Havers, not all of which were relied on below, are adequate to protect the private/public interest in confidentiality after the judge’s initial order for production to the health authority.

Accordingly, despite Mr Havers’ cogent submissions I conclude that he has not demonstrated any error of law or principle that would justify our intervention nor has he demonstrated that the discretionary bounds set by Munby J were plainly wrong. In the circumstances of this application listed before a judge other than the trial judge the ambit of the judicial discretion is necessarily wide. The judge elected for a cautious approach. In my opinion he was not only entitled but wise so to do. (After all the health authority are not precluded from further application should circumstances change or unexpected difficulties arise.) We must, of course, ourselves be cautious in interfering with such an exercise of discretion. I would dismiss this appeal.

LAWS LJ:

I agree.

HARRISON J:

I also agree.

Order:

Appeal dismissed with costs.

Leave to appeal to House of Lords refused.

(Order does not form part of the approved judgment)