Disclosure: Confidence in the courts
Courts now face the task of deciding the limits of article eight duties
Some of the most interesting public law cases are where two or more perfectly legitimate but conflicting interests intersect and the court needs to sort out how those conflicting interests are to be resolved. This occurred in the recent case of Re TB. The facts were simple. D was a 34-year-old man of good character who was charged with a sexual assault of TB, a 14-year-old girl. His defence was that he was the victim of a schoolgirl crush and that she had made it all up. TB was receiving mental health treatment at the time and D implied that making up allegations was a symptom of her disturbed mind. Late in that day, D’s solicitors applied to the mental health trust for disclosure of TB’s medical records relating to her recent mental health treatment. The trust opposed the application which, because it was made just prior to the trial, came before the Crown Court judge at Stafford. D’s case was straightforward. His counsel said D needed access to the medical notes to ensure a fair criminal trial. The trust’s case was slightly more complex. It said the notes were confidential, the confidence belonged to the patient not the trust and it was a breach of the patient’s article eight privacy rights for the judge to decide the case without the patient being there. Public interest The trust also said that, on the facts, the notes were irrelevant and there was no public interest in disclosure, but those arguments – which the judge eventually dismissed – are not central to the uniqueness of this case. Crown Court rules say nothing about the patient being served with such an application and, perhaps not surprisingly, this argument got short shrift in the court. The judge focused on the trial before him – the criminal trial – and ordered disclosure to uphold the defendant’s right to a fair trial. What happened next is best glossed over, but there was a trial and the jury convicted D. A month later the official solicitor sought declarations from the administrative court that TB’s article eight rights were infringed by her medical notes being ordered to be disclosed at a hearing where she was not present. The judges could have dismissed the application on the ground that it was academic because the trial had finished long ago or that TB’s confidentiality was protected by the trust. To their great credit, Lord Justices May and Justice Forbes refused to take these shortcuts and looked at the procedural requirements of article eight, bearing in mind the defendant’s right to a fair trial under article six. The judges decided that the procedural requirements under article eight meant the patient had to be served and have the chance to appear to object before there was any disclosure of her medical notes. This case raises some difficult and potentially far-reaching issues. First, until new Criminal Procedure Rules come into force, where disclosure of medical notes is sought in criminal or civil proceedings, patients will have to be served with the application as well as the doctor or trust who holds the notes, even though there is nothing in the current rules to require this. School records Second, the same principles must apply where a party seeks to breach or override other confidences where information is sought in criminal cases such as social work notes, school records or any other information provided in confidence. This case suggests that every person whose confidence is being breached or overreached must be given notice and have a chance to have their say. Third, what about other occasions where the state, in all its guises, makes a decision to disclose confidential information without the consent of the holder of the confidence in the public interest? In Woolgar v Chief Constable of Sussex, the issue was whether the police could over-reach the confidentiality of a police inquiry by providing information about an inquiry into a nursing home to the UK Central Council which then regulated nurses (the predecessor of the Nursing and Midwifery Council). However, much of the information in that case must have been confidential information relating to individual residents who, no doubt, would also regard the details as confidential. If Re TB is followed to its logical conclusion, everyone who had confidential information proposed to be disclosed about him or her would have an article eight right to know about the proposed disclosure in advance and to have the right to put objections to the chief con-stable before the decision on disclosure was made. That would, to say the least, be an administrative nightmare for the police and for all professional regulators. The only safe bet seems to be that the Administrative Court will be troubled on a number of further occasions to sort out the limits of the article eight duties that this case has raised.
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