England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice The Strand
		28th May 1999

MR JUSTICE LATHAM:

In these proceedings the applicants seek certain declaratory relief in relation to a policy document issued in July 1997 by the respondent to Health Authorities. This

followed a request to General Practitioners (GPs) from a data collecting company (not the applicants) for their consent to obtain certain information relating to the treatment provided for patients in a form which would ensure the anonymity of those patients. The policy document reads as follows:

"You may be aware that the Department published guidance - The Protection Use of Patient Information - March 1996. The guidance makes it clear that under common law and Data Protection Act principles, the general rule is that information given in confidence may not be disclosed without the consent of the provider of the information. In this instance, both patients and GPs may be regarded as providers of the data in question.

The letter from the data company to Doctor X suggests that no patient information or diagnostic details would be collected. Anonymisation (with or without aggregation) does not, in our view, remove the duty of confidence towards the patients who are the subject of the data. Apart from the risk of identification of a patient despite anonymisation, the patient would not have entrusted the information to the GP or the pharmacist for it to be provided to the data company. The patient would not be aware of or have consented to the information being given to the data company, but would have given it to be used in connection with his care and treatment and wider NHS purposes. Anonymisation of the data (with or without aggregation) would not obviate a breach of confidence.

The documents from the data company do not make clear who was responsible for separating patient details from the prescriber and prescription details. If it is the data company, then the pharmacist or GP will be in breach of duty of confidence towards the patient in allowing the data company access to this information.

The duty of confidence may in some circumstances be outweighed by the public interest in disclosure. However we have severe reservations that disclosure by GPs or NHS pharmacists of dispensing information to X or other data companies would be argued to be in the pubic interest. Indeed it might well be contrary to the public interest if the data company is further selling on the information on doctors prescribing habits to the pharmaceutical industry.

These are complex legal and policy issues, which we hope to give guidance to the NHS later this Summer. In the interim, the substance of this letter is that any GP or NHS pharmacist disclosing, prescribing or dispensing information in the way described will be incurring legal risks. On policy grounds we would strongly discourage all such disclosures.

Any GP or pharmacist seriously considering such a step should, of course, take their own legal advice and not rely on the views expressed in this letter which are provided for information purposes only."

At the time, the applicants were themselves trying to persuade GPs and pharmacists to allow them to collect data as to the prescribing habits of GPs. They believed that this information would be of commercial value to drug companies, and would provide useful data for those interested in monitoring prescribing patterns. The proposal was that, with the consent of the GPs, the pharmacists would, for a fee, and using software provided by the applicants, download onto disc the name of the GP and the identity and quantity of the drugs prescribed, but nothing which could identify the patient. As a result of the distribution by the Health Authorities of the respondent's policy document, most doctors and pharmacists have refused to participate in the proposal.

The applicants have tried, unsuccessfully, to persuade the respondent to change its guidance. They have also sought to allay the fear of the respondent that there will always remain a risk that a patient may be identified. They have done so by agreeing, inter alia that rare drugs or rare drug combinations which might be capable of identifying a patient should be excluded. I am asked by the applicants to assume that anonymity can be guaranteed for patients. In these circumstances, it is said, the policy guidance is wrong in law in asserting as it does in the second paragraph, that what is proposed would amount to a breach of confidence. The specific relief sought is:

"1. A declaration that the guidance contained in the policy document promulgated on or about the 24th July 1997 by the Department of Health is erroneous in law.

2. A declaration that disclosure by doctors or pharmacists to a third party of anonymous information, that is information from which the identity of patients may not be determined, does not constitute a breach of confidentiality."

Mr Beloff QC, on behalf of the applicants, accepts that when the patient hands in the prescription to the pharmacist for the pharmacist to dispense the relevant drugs, the contents of the prescription are confidential information. The confidence is partly that of the GP as the prescriber, and partly that of the patient. As far as the patient is concerned, it identifies the fact that he is taking drugs; and the nature of the drugs he is taking could identify his mental or physical condition. He submits, however, that the material supplied to and used by the applicants once abstracted from the prescription, is no longer imprinted with any confidentiality. As far as the GP is concerned, assuming that he has agreed to the applicant's proposal, he will ipso facto have consented to the use of the information. So far as the patient is concerned, the information will have become purely statistical, carrying with it no information of a personal or private nature. It follows that there has been no breach of confidence. In any event, it is submitted, an essential element in any claim for breach of confidence is that the claimant should have suffered detriment; and no detriment could be suffered by the patient so long as anonymity is secured. It is yet further submitted that the process of abstracting the information for the applicants does not involve any misuse by the pharmacist of the information contained in the prescription. The process of sorting the information so as to exclude the name of the patient is not in itself use of the material; when used, that is delivered to the applicants, it no longer contains confidential information. Finally it is submitted that statistical information of the sort which the applicants wish to obtain is collected routinely within the health service for the benefit of the service, and the patients, and in the interests of medical research. Mr Beloff points to the fact that although the applicants clearly wish to use the material for commercial purposes, there are many research and other disinterested organisations who have written to the respondent indicating that the applicants proposal, if implemented, would provide valuable research material, and could be a useful administrative tool.

Mr Sales, for the respondent, accepts that this Court can in its discretion determine the lawfulness or otherwise of the policy guidance. He submits that it is correct as a matter of law. In his submission, the information contained in the prescription can only be used for the purpose for which it was provided, namely dispensing the relevant drugs. Any other use, other than one for which actual or implied consent had been given, will amount to a misuse of the information. As it is accepted that the information is confidential, its misuse ipso facto amounts to a breach of confidence. The misuse consists of the manipulation of the information and its transmission to the applicants for the commercial benefit of the pharmacist. He submits that it is unnecessary, in order to establish a breach of confidence, that the confider suffer any detriment. If he is wrong about that, he submits that the patients would, in fact, suffer detriment by reason of the misuse of the confidential information.

It is a curious fact that this issue has never before been the subject matter of litigation, either in the context of the relationship of a doctor and his patient, or any other similar relationship which carries with it the duty of confidence. I say that it is curious because it is common knowledge that material gleaned from patients records is routinely used, as has been pointed out on behalf of the applicants, for the purposes of medical literature and research, and to obtain relevant statistics. The applicants submit that the absence of controversy is of itself a powerful indication that no-one has ever considered that information obtained in a way which secures anonymity can amount to a breach of confidence. It is also surprising that there is little discussion of the matter in the literature to which I have been referred. The only authors who confront the problem, and then not directly, are R G Toulson and C M Phipps in their book on Confidentiality, 1966. In their discussion about the problems confronting doctors, they cite the judgment of Jeffries J in Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513 at page 520 where the Judge said, inter alia:

"Limited information to some outside agencies may be made available by a doctor from his files for statistical, accounting, data processing or other legitimate purposes."

They then, at 13-06 under the heading "Advancement of Medicine" cited a dictum of Bingham LJ in W v Egdell [1990] 1Ch 359 at page 419 (a decision which I shall return to later) where he said:

"It has never been doubted that the circumstances here were such as to impose on Doctor Egdell a duty of confidence owed to W. He could not lawfully sell the contents of his report to a newspaper, as the judge held..... nor could he without a breach of the law as well as professional etiquette, discuss the case in a learned article or in his memoirs or in gossiping with friends, unless he took appropriate steps to conceal the identity of W."

On the basis of this latter dictum, the authors assert that the same principle must apply to the use of patient information for medical research, unless with the patients consent. This accords with the advice given by the General Medical Council in its booklet on "Confidentiality" which states:

"Where, for the purposes of medical research there is a need to disclose information which it is not possible to anonymise effectively, every reasonable effort must be made to inform the patients concerned, or those who may properly give permission on their behalf, that they may, at any stage, withhold their consent to disclosure."

Having cited this passage, the authors continue:

"There may be circumstances where a breach would be so technical as to cause no damage and where a court would not think it appropriate to grant equitable relief in any form. For example, a researcher who has given access to medical records may have no interest in the identity of the patients and have no intention of publishing information from which any patient could possibly be identified. But it may be difficult, if not impossible, to remove the patients names from the material to which the researcher is given access.

In such a case it may be that there would be no cause of action at all, because the disclosure would involve no detriment to the patients. In reality, of course, it is unlikely that such a case would give rise to any complaint which would ever become before a court, and, if it did, it is improbable that the court would intervene to stop such research."

Implicit in this passage, and in the citation, with approval, of the dictum of Bingham LJ, is the authors' view that the use of anonymised information obtained from patients would not amount to a breach of confidence.

In my judgment, however, a rather more careful analysis is required of what constitutes a breach of confidence as to which the courts will provide a remedy. A useful analysis of the law is set out in chapter 1 of Dr F Gurry's monograph "Breach of Confidence" 1984 where, at page 3 he says:

"Confidences are enforced in law through the action of a breach of confidence. In order to establish a cause of action, a person who imparts information ("the confider") to another ("confidant") must satisfy three requirements:

1. The confider must demonstrate that the information which he has imparted was "confidential". As a general rule, confidentiality is established by showing that the information is inaccessible to the public:

"it must not be something which is public property and public knowledge."

2. The confider must establish that the confidential information was disclosed in circumstances which imposed an obligation on the confidant to respect the confidentiality of the information. Generally, such an obligation will arise when even information is imparted either explicitly or implicitly, for a limited purpose. The limited purpose of the disclosure circumscribes the nature of the confidence between the parties by imposing on the confidant a duty to refrain from using the information for any extraneous purpose. The Obligation of confidence thus formed extends not only to those confidants who have received confidential information for a limited purpose, but also to any third parties to whom the confidant discloses the information in breach of his obligations.

3. Having established that confidential information has been disclosed in circumstances which impose an obligation of confidence on the confidant, the confider must finally show cause for invoking the aid of the Courts to enforce the confidence. He must show that the confidant has breached the obligation. This requirement is satisfied where it is shown that the confidant has made an unauthorised used of the information by using it for a purpose other that that for which it was imparted to him."

To the latter sentence he appends a footnote on page 5, in the following terms:

"It is often said that the unauthorised use or disclosure must be to the detriment of the confider before a cause of action will be established. Detriment is, however, better treated as a factor which affects the remedy which will be accorded for a breach of confidence that is an element which must be shown to exist before a cause of action can be considered as established."

The scope of the action was first enunciated in this form by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at page 47 as follows:

"In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene MR in the Saltman case on page 215, must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

As to the latter element, Megarry J expanded on it later at page 48:

"Thirdly there must be an unauthorised use of the information to the detriment of the person communicating it. Some of the statements of principle in the cases omit any mention of detriment; others include it. At first sight, it seems that detriment ought to be present if equity is to be induced to intervene; but I can conceive of cases where a plaintiff might have substantial motives for seeking the aid of equity and yet suffer nothing which could fairly be called to detriment to him, as when the confidential information shows him in a favourable light but gravely injures some relation or friend of his whom he wishes to protect. The point does not arise for decision in this case, for detriment to the plaintiff plainly exists. I need therefore say no more than that although for the purposes of this case I have stated the propositions in the stricter form, I wish to keep open the possibility of the true proposition being that in the wider form."

This analysis of the action for the breach of confidence has repeatedly been cited with approval and was adopted by Lord Griffiths in Attorney General v Guardian Newspapers (No 2) [1990] 1AC 109 at page 268.

The question at issue in the present case depends upon consideration of the third element. For it is not disputed that the information in the prescription handed to the pharmacist has the necessary quality of confidence about it; nor is it disputed that in receiving that information, the pharmacist is under a duty of confidence in relation to it. The question is whether, in acceding to the applicants' proposal, the pharmacist will be making unauthorised use of that information, and if so the extent to which detriment to the patient would have to be shown in order properly to describe what had occurred as a breach of confidence. I put it in that way because I am asked to make a declaration in relation to the wording of the policy guidance, and not in relation to any specific case.

As I have already said, Mr Beloff submits that there has been no unauthorised use of the information. He does so in two separate ways. First he argues that when anonymised, the information loses its confidential character and it is only publication and dissemination of the confidential information which could amount to a breach of confidence. He referred me to the speeches in Attorney General v Guardian Newspapers (No 2) (supra), and in particular the speech of Lord Goff at page 281 in which he states that the vice in such a situation is the disclosure of the information. Mr Beloff submits that in no sensible way can the anonymised use of the information relating to the drugs in the prescription for statistical purposes be described as disclosure. Alternatively, he submits that the process of anonymisation carried out by the pharmacist is not of itself a use of the information. The information is only used when passed on to the applicants, by which time the information has lost its confidential character. For this submission he relies on case of R v Brown [1996] 1AC 543. The defendant in that case a police officer who was entitled to use the police national computer database in his duties as a police officer, ran checks on two vehicles on behalf of a friend who ran a debt collection agency. On the first occasion the search did not reveal any personal data as defined by the Data Protection Act 1984; on the second occasion, although personal data was revealed, there was no evidence that any subsequent use was made of the information obtained. He was charged with using the data by retrieving information from the computer onto his screen. The House of Lords held that that did not amount to use; there had to be something more than merely the retrieval of the information onto a screen.

Mr Sales makes the straightforward submission that the confidential information is given to the pharmacist only for the purpose of obtaining the drugs; and any use for any other purpose would be unauthorised, unless the pharmacist could point to an express or implied consent to such use. It is not suggested in the present case that a patient could properly be said to give implied consent to the use of the information for the commercial purposes of the pharmacist and the applicants. In those circumstances the use proposed will clearly be unauthorised. As far as the case of R v Brown (supra) is concerned, he submits that it is of no assistance to the applicants. In the present case, what is envisaged is not merely the manipulation of the material on the computer, but also its use in the sense that their Lordships considered would amount to an offence under Section 5 of Data Protection Act 1984. He submits that there is no need for him to show that there would be any detriment to a patient. It is sufficient that information of an intimate nature has been used for an unauthorised purpose. In any event, he submits, the patient suffers detriment in that material which is conceded to be of commercial value is obtained from him without his having the opportunity to consider whether or not he wishes to exploit that information himself.

In my view, it is impossible to escape the logic of Mr Sales' argument that the proposal involves the unauthorised use by the pharmacist of confidential information. I reject the sophistry of Mr Beloff's submission that the process can be divided into two stages. In my judgment what is proposed will result in a clear breach of confidence unless the patient gives consent, which is not part of the proposal at present. Nor is it suggested that the patient can be said to have given implied consent. This may be the position where doctors and the Health Service itself use anonymous material for the purposes of research, medical advancement or the proper administration of the Service. That is not, however, a matter on which I have heard sufficient evidence or argument to enable me to come to any conclusion; nor is it necessary for me to do so for the purposes of these proceedings.

In one sense this is sufficient to answer the question raised in these proceedings. But I recognise that the thrust of the policy guidance is that pharmacists who agree to take part in the Applicants' proposals will expose themselves to the risk of successful actions for breach of confidence. Mr Beloff's argument is of course that if anonymity can be guaranteed, no patient could conceivably suffer detriment, which is a necessary ingredient of such an action. The real question is therefore, what part detriment plays in a cause of action for breach of confidence. This subsumes a further question which is what constitutes detriment for the purposes of such an action.

In Attorney General v Guardian Newspapers (No 2) (supra) differing views were expressed by their Lordships. Lord Keith of Kinkel said, at page 255E:

"It is worthy of some examination whether or not detriment to the confider of confidential information is an essential ingredient of his cause of action in seeking to restrain by injunction a breach of confidence. Presumably that may be so as regards an action for damages in respect of a past breach of confidence. If the confider has suffered no detriment thereby he can hardly be in a position to recover compensatory damages. However the true view may be that he would be entitled to nominal damages. Most of the cases have arisen in circumstances where there has been a threatened or actual breach of confidence by an employee or ex-employee of the plaintiff, or information about the plaintiff's business affairs has been given in confidence to someone who has proceeded to exploit it for his own benefit..... In such cases the detriment to the confider is clear. In other cases there may be no financial detriment to the confider, since the breach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll v Duke of Argyll [1967] Ch 302 an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect. If a profit has been made through the revelation in breach of confidence of details of a person's private life it is appropriate that the profit should be accounted for to that person. Further, as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself. Information about a person's private and personal affairs may be of a nature which shows him up in a favourable light and will by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I would think it of sufficient detriment to the confider that information given in confidence is to be disclosed to persons whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way."

Lord Griffiths said at page 270D:

"First it is submitted that detriment to the confider is not an essential element that has to be proved in support of the action for breach of confidence. Mr Alexander gave as an example a marital confidence which showed some friend of the husband in a very bad light and suggested that a Court would, at the suit of the husband, restrain a wife from publishing such information even though it did not harm the husband. I dare say the Court would protect such a confidence but I do not accept that the husband would suffer no detriment if the confidence was breached. The husband would be likely to lose a friend and friends can be precious. I am of the opinion that detriment or potential detriment to the confider is an element that must be established before a private individual is entitled to the remedy. The remedy has been fashioned to protect the confider not to punish the confidant and there seems little point in extending it to a confider who has no need of the protection."

Lord Goff said at page 281H:

"I would also, like Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 48, wish to keep open the question whether detriment to the plaintiff is an essential ingredient of an action for breach of confidence. Obviously, detriment or potential detriment to the plaintiff will nearly always form part of his case; but this may not always be necessary."

These opinions seem to me to highlight but not resolve the problem. The clearest statement of principle is that expressed by Lord Griffiths. He considered that the answer to the question was dependant upon whether or not what would otherwise be a breach of confidence, in the sense that it was an unauthorised use of confidential information, had had an effect which justified the grant of relief. The examples given by Lord Keith, and indeed the example given by Lord Griffiths, show that all of their Lordships were aware of the fact that an unauthorised use of confidential information might have a subtly and not overtly detrimental consequence. The same concern appears to lie behind the caution expressed by Megarry J in his judgment in Coco v A N Clark (Engineering) Ltd (supra).

This suggests that there may, in truth, be little or no difference between the robustly expressed view of Lord Griffiths and the more cautious views of Lord Keith and Lord Goff. It seems to me that all three recognised that there must be some effect on the confider from which the Court considers that he is entitled to protection before the Court will provide a remedy. This would, it seems to me, accord with the views of Dr Gurry in his footnote on page 5 to which I have already referred, and who, at page 58 says:

".... the Courts' attitude to jurisdiction has been a pragmatic one. What has mattered, it seems, is the existence of a jurisdiction on which to act in the case immediately in hand. Considerations of conceptual neatness have been secondary to this pragmatic question:

"the true question is whether, under the circumstances of this case, the Court ought to interpose by injunction, upon the grounds of breach of faith or of contract...... Morrison v Moat (1851) 9 Hare 241 at page 255""

The difficulty is in determining on an a priori and hypothetical basis what can constitute such an effect.

In any given case, it seems to me that it is necessary to identify with some care precisely what it is that the action for breach of confidence is there to protect. In situations such as that with which I am concerned, confidence is essentially imposed because of the personal information which the prescription contains. Professor Wacks in his monograph, Personal Information: Privacy and the Law, 1989, at page 26, defines personal information as follows:

"Personal information consists of those facts, communications, or opinions which relate to the individual and which it would be reasonable to expect him to regard as intimate or sensitive and therefore want to withhold or at least to restrict their collection, use or circulation."

Dr Gurry describes the function of the action in protecting personal confidences as being closely associated with the notion of privacy. He approves at page 13 the idea that the state of perfect privacy is the state of complete inaccessibility to others, so that a loss of privacy occurs as others obtain information about an individual, pay attention to him or gain access to him. Approaching the problem from this perspective, namely that it is the privacy of the claimant which the action is designed to protect, it is difficult to see how any relevant effect could arise from the use of successfully anonymised information. In that form, the information provides nothing which could link it to the individual's identity; therefore it is no longer personal information, nor is it information which provides any access to the individual whose information is so used.

However, Mr Sales sought to persuade me that sufficient harm could be caused even if anonymity could be guaranteed. Lord Keith in Attorney General v Guardian Newspapers (supra), at page 256A said, as I have already cited earlier:

"Further, as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself."

Mr Sales has submitted that this case provides an example of just such a situation. The information is so intimate and personal that its use for anything other than the purpose for which it is divulged constitutes a detriment to the confider and is ipso facto justification for restraining any unauthorised use.

This submission merges with two other submissions that he makes on this topic. First he submits that some patients might legitimately feel outraged at the fact that, without their consent, information which they may feel to be peculiarly personal to them can be used for the commercial gain of the pharmacist, and ultimately the applicants. Second, given that the information has commercial value, he submits that they may feel that they have been deprived of the opportunity to exploit that commercial value themselves.

These arguments are difficult to evaluate in the abstract, which is what I am being asked to do in these proceedings. The majority of patients would, I suspect, be unconcerned by the prospect that statistical information obtained from their prescriptions was being used in this way, recognising that, if anonymity is guaranteed, their privacy would not be invaded, and that the commercial value of their prescriptions would individually be infinitesimal. But I recognise that, for some, the sensitivity, as they would see it, of the information may be such that they would feel that any use of the information without their consent, would be unconscionable. In other words it would be a breach of the trust which they were reposing in the pharmacist. Should the law provide them with a remedy even if anonymity can be guaranteed, so that the essential purpose for which confidentiality is imposed on the pharmacist is protected?

I have come to the conclusion that Mr Sales is correct in categorising this type of situation as one in which there is a public interest in ensuring that confidences are kept. It is important that those who require medical assistance should not be inhibited in any way from seeking or obtaining it. As I have indicated, I believe that there may be some patients who will feel very strongly that the pharmacist should not give any information obtained from the prescription without their consent. This will enable them to make a decision as to whether to allow the information to be used.

This touches on one other unsatisfactory aspect of this particular action. So far, I have discussed the case on the basis that anonymity can be guaranteed. However, the applicants have themselves accepted that there is a remote risk that certain information of a rare kind might conceivably enable a patient to be identified. I fully accept that there is no evidence before me which sets out any rational basis for such concerns. Nonetheless, it highlights the fact that systems may not always be perfect. In these circumstances, why should the patient be deprived of the opportunity of making up his own mind as to the risk, such as it may be? This approach also has the merit, it seems to me, of placing the debate in its correct context. Pharmacists provide a service to the community as a whole. It is a matter of real importance that they retain the trust of the public. For them to breach their patients' confidence for their personal gain does not seem to me to be acceptable unless it could be said that the breach of confidence is in itself in the public interest. The applicants in the present case did not seek to persuade me that disclosure of the information would be in the public interest, although I can see that this may well be an alternative solution to the problem of the use by doctors and Health Authorities of information gleaned from patients. On the other hand I do not consider that the fact that the information has commercial value is likely, of itself to justify the court intervening at the behest of an individual patient. Leaving aside for the moment the difficult question of whether this is an interest which an action for breach of confidence will protect, the value to him of the information will, as I have already said, be infinitesimal. As Rose J said in X v Y and Others [1988] 2 ER 648 at 657f:

"There must (as is common ground) be a substantial not trivial, violation of the plaintiffs' rights to justify equitable relief."

This case was relied on by Mr Sales for the more fundamental proposition that no detriment at all need be shown in order to found the right to relief. In that case a Health Authority worker disclosed to a member of the press information identifying two general practitioners as suffering from Aids. The Health Authority sought, inter alia, an injunction against the reporter and the newspaper which employed him restraining them from making use of that information. The defendants had made contact with the doctors concerned, and were threatening to reveal their identity. They argued at trial that even if, contrary to their main contention, they were not protected by the public interest in disclosing the information, nonetheless they were entitled to publish the story so long as it ensured the anonymity of the doctors as there would be no detriment to the plaintiffs, that is the Health Authority in that eventuality. Rose J said, at page 657d:

"Counsel for the plaintiffs submitted that detriment is not a separate question but part of the balancing exercise. Further he said there is detriment first, in the breach of contract, second in the special arrangements which had to be made in order to continue treatment of one of the doctors (as described by the physician), third, in the pursuit of one of the doctors as appears from first defendants notes of conversation an unpublished draft article and in the information that the other doctor was "very suicidal", and fourth, in the apparent breach of the plaintiffs duties of medical confidentiality and under the National Health Service (Venereal Diseases) Regulations 1974.

In my judgment detriment in the use of "(original emphasis)" the information is not a necessary precondition to injunctive relief."

He then went on to consider those cases in which injunctions had been granted to restrain those who had obtained confidential commercial information from exploiting it. He noted that in a number of those decisions, no reference to the necessity for detriment in use was made. He continued at page 658a:

"But use of the information (as the defendants now seek) in a way which identifies neither the hospital nor the patients does not mean that the plaintiffs have suffered no detriment. Significant damage about which the plaintiffs are entitled to complain has already been done. This is also the answer to the additional submission of counsel for the first defendant that, though there was a breach of confidence in obtaining the information there is, on the evidence, none in publishing it, if the doctors are not identified. In my judgment it is, in the present case, the initial disclosure and its immediate consequences, not subsequent publication, which have found the plaintiffs claim in breach of contract and breach of confidence."

Mr Sales submits that, properly understood, this establishes that once there has been a breach of confidence, there is no need to show detriment in order to obtain a remedy. I do not, however, consider that it supports such a broad proposition as that. It identifies that the breach of confidence in itself might carry with it sufficient detriment to justify the grant of a remedy. With that, I respectfully agree. That is my reason for concluding that in the present case, the breach of confidence by the pharmacist is capable of providing the basis for a successful action.

In coming to this conclusion, I am fully aware of the fact that this would appear to be contrary to the dictum of Bingham LJ in W v Egdell (supra). In that case a doctor was retained by the plaintiff to support his application for a transfer to a regionally secure unit from a special hospital where he was detained without limit of time. The report was adverse to the plaintiff. He refused to permit the defendant doctor to disclose the report to the medical staff at the hospital. The defendant was so concerned at the danger the patient represented that he took it on himself to disclose the report. The court held that the public interest in the circumstances outweighed the doctor's duty of confidence to the plaintiff. No question arose in the case as to the effect in a breach of confidence case of making the patient's details anonymous. The case itself was concerned with the precise opposite. It does not seem to me that the remark of Bingham LJ formed any part of his reasoning. I do not therefore consider that it precludes me in any way from coming to the conclusion that I have although, obviously, I have considered it with some care.

Mr Beloff's final submission is that the policy advice interferes with the applicants right to receive and impart information, contrary to Article 10 of the European Convention on Human Rights. However, Article 10.2 provides:

"The exercise of these freedoms, carries with it duties and responsibilities, maybe subject to such formalities, conditions, restrictions or penalties as are prescribed by law, and are necessary in a democratic society..... for preventing the disclosure of information received in confidence......"

The respondents interference in this case consists of guidance which I have held to be a correct statement of the law relating to the disclosure of information received in confidence. It is not therefore, in my view, a breach of Article 10. I recognise, however, that in any given case Article 10.2 might require a balance to be struck between the applicants rights and those of the patient. As a matter of principle, I consider that the rights of the patient are capable of justifying such interference, which is sufficient for the purposes of the present proceedings.

It follows that in my judgment the applicants proposal involves a breach of confidence which is capable of founding an action. The respondent was therefore entitled to give guidance in the form of the policy document in question, and to recommend that any pharmacist interested in the proposal should seek legal advice.

MR JUSTICE LATHAM: For the reasons given in the judgment which I now hand down, copies of which have been made available to the parties, this application is dismissed.

MR SALES: My Lord, I ask for the Secretary of State's costs.

MR JUSTICE LATHAM: Miss Moore?

MISS MOORE: My Lord, I cannot resist the application for costs, but I do have application for permission to appeal to the Court of Appeal.

MR JUSTICE LATHAM: Yes.

MISS MOORE: I make four points in support of this application.

MR JUSTICE LATHAM: I do not think you need, unless Mr Sales has anything that he wishes to say.

MR SALES: We would resist it in fact.

MR JUSTICE LATHAM: Yes.

MISS MOORE: The first point is that the case raises at least two issues of huge importance for the law of confidentiality. The first of those is the effect of anonymisation of prima facie confidential information.

MR JUSTICE LATHAM: I forgot to check before I handed down my judgment whether the Oxford Dictionary actually sanctions the use of the word 'anonymised'.

MISS MOORE: I am afraid I did not check that either. It was a short hand that was used throughout the course of the case.

MR JUSTICE LATHAM: And appears in my judgment too.

MR SALES: My Lord, if it is any comfort, I think the GMC sanctions the use of it. I am not sure it is the same authority as the Oxford English Dictionary.

MISS MOORE: This, of course, has implications not only in respect of the use made of confidential medical information, but other kinds of confidential information.

MR JUSTICE LATHAM: Yes.

MISS MOORE: The second issue is the part that detriment plays in an action for breach of confidence and what constitutes detriment for this purpose. Your Lordship recognised in the course of this judgment that the resolution of that question in an appropriate case was a difficult one.

MR JUSTICE LATHAM: Yes.

MISS MOORE: The second point, again as your Lordship recognised in the judgment, is that there is very little authority on this point, despite the fact that material from patients' records is routinely used for statistical and research purposes. So in my submission this area of the law would benefit from guidance on the matter by the Court of Appeal.

My third point interrelates with the second point, which is that your Lordship's views appear to contradict the views expressed in Toulson and Phipps on Confidentiality and those of Bingham LJ in the W v Egdell case. So, with the greatest of respect to your Lordship, there is a real prospect that the Court of Appeal might take a different view of this case from that your Lordship has taken.

MR JUSTICE LATHAM: Although it is right to say that I do not think either the authors of the book or Bingham LJ had the benefit of the arguments that we had on the last occasion. But I understand the point.

MISS MOORE: I am grateful, my Lord.

The final point is that this case is important not simply as to the questions of law, but it raises important factual issues since the applicant's scheme is an important one, which, if allowed to operate, would have a material, and we say beneficial, impact on the marketing of drugs.

For those four reasons, I respectfully submit that this is an appropriate case on which permission should be granted to appeal to the Court of Appeal.

MR JUSTICE LATHAM: Mr Sales?

MR SALES: My Lord, we resist the application for permission to go to the Court of Appeal. We make four points. First of all, in our submission it is relevant that what this case concerns is guidance; not the determination of any rights. In our submission it has reached a natural resting place, where guidance has been sought from the court and that has been obtained.

The second point is that your Lordship described at page 10 in the judgment the submission that we made as a "straightforward submission". That is precisely what it was. In the circumstances we would submit that this is not a case where your Lordship should be going out of his way to grant leave to appeal.

MR JUSTICE LATHAM: Mr Sales, the trouble is that I had, as you have appreciated, little difficulty in coming to the conclusion that there was a breach of confidence. The question was whether or not because it seemed to me that I should answer the point that the guidance was effectively saying that there was a real risk of a successful action, I ought then to go on to consider what I thought to be the more difficult question, which is whether there might be a risk of an action.

MR SALES: What the guidance in fact did was to say --

MR JUSTICE LATHAM: Well, I understand.

MR SALES: -- there is a breach of confidence, and secondly, that that gives rise to legal risks. It did not in terms say that there is a real risk of an action, or anything like that. It was intended to be guidance as to proper conduct by pharmacists. That is what the application was about, and it is that part of the application which your Lordship has just said was not particularly troubling in terms of reaching a view.

As to the rest, if I may address the point about the point of detriment.

MR JUSTICE LATHAM: Certainly.

MR SALES: In my submission that is also an argument against the case going to the Court of Appeal. Your Lordship made the point that it was very difficult to grapple with the particular issues that were thrown up in the abstract. Whilst one might accept that an appropriate case would raise in acute form the issues of detriment in a way that could usefully be resolved by the Court of Appeal, in my submission in the particular circumstances of this case, where we are dealing with guidance and addressing not particular cases but simply guidance addressed to pharmacists at a fairly general and abstract level, this is a situation where any permission should be sought from the Court of Appeal rather than from this court.

My Lord, those are our submissions in resisting permission.

MR JUSTICE LATHAM: Yes. Miss Moore, have you anything else to say?

MISS MOORE: My Lord, a couple of points. The fact that the case concerns guidance does not affect the fact that it still raises important issues of law which I say should be resolved by the Court of Appeal. The fact that you considered Mr Sales' submission to be straightforward does not mean the issues of law involved are straightforward. In my submission they are not.

Although your Lordship indicated that you had no trouble establishing that there was no breach of confidence, with respect, I say again, that does run contrary to the flavour of previous authority on the subject matter; and the issue of detriment itself is so tightly interwoven as to whether there is a breach of confidence in the first place that it is very difficult to separate out those two issues.

MR JUSTICE LATHAM: Yes. Thank you very much.

I shall grant leave to appeal. However, I think there is much in what Mr Sales says - that the difficulty presented by this case is that it is one of those cases which raises an issue, as I have said in my judgment, in a vacuum, and it may well be that the Court of Appeal may assert that I went too far in trying to resolve the issues which were posed in the case. So be it, but I think that I will give leave, and if the Court of Appeal want to say that, they can.

MISS MOORE: I am grateful, my Lord.

MR JUSTICE LATHAM: So I grant permission to appeal.

MR SALES: And I think, your Lordship, since the costs application is not resisted...

MR JUSTICE LATHAM: I order that the claimant do pay the respondent's costs.