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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stevens, R (on the application of) v Plymouth City Council & Anor [2002] EWCA Civ 388 (26th March, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/388.html Cite as: [2002] 1 FLR 1177, [2002] 1 WLR 2583, [2002] EWCA Civ 388, [2002] WLR 2583 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MAURICE KAY)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE CLARKE
and
LADYJUSTICE HALE
____________________
THE QUEEN ON THE APPLICATION OF ANN S | Appellant | |
- and - | ||
PLYMOUTH CITY COUNCIL - and - “C” | 1st Respondent Interested Party |
____________________
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)
Alan Maclean Esq (Instructed by Plymouth City Council) for the 1st Respondent
Miss Aswini Weereratne (instructed by The Official Solicitor) for the Interested Party
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lady Justice Hale:
The facts
‘I would like to be able to supply you with copies of the written recommendations etc to which you refer as I believe that these will confirm that everything which has been done is in C’s best interests. However, I can find no authority for me to disclose this information to Mrs S or to you as her solicitors. I find it illogical, if not ludicrous, that the nearest relative should not be entitled automatically to this information but without authority I do not see how it can be disclosed.’
As to the files, she agreed that if C did not have the capacity to consent, the common law rules on confidentiality would apply but she would have to seek further instructions as to whether disclosure was in C’s best interests.
‘the duty of confidentiality is not absolute and that the public interest that confidences should be preserved may be outweighed by some other public interest favouring disclosure’; but ‘my reading of the case law leads me to conclude that disclosure should not be made without very good reasons. I do not believe that such reasons exist in this case . . . This is not a case where the parent does not know what the issues are or why decisions have been made. It is not a case where information is needed in order to evaluate and if necessary challenge those decisions. Mrs S has been fully involved in the care planning process for C and is aware of all the professional opinions, the reasons for them and the reasons for the decisions which have been made. The fact that Mrs S does not like those reasons is not, in my opinion, sufficient to out-weigh this Authority’s common law obligation not to disclose confidential information.’
This letter also warned that if Mrs S took steps to end the guardianship, ‘I have no doubt that I will be instructed to issue a further application for an Order under Section 29 of the Mental Health Act 1983 displacing Mrs S as nearest relative’.
Guardianship and the powers of the nearest relative under the Mental Health Act 1983
‘(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.’
‘(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.’
Under the predecessor to the 1983 Act, the Mental Health Act 1959, guardianship conferred ‘all such powers as would be exercisable by them or him in relation to the patient if they or he were the father of the patient and the patient were under the age of fourteen years’ (s 34(1)). The 1983 Act represented a deliberate restriction to those powers essential to achieve the purpose of the guardianship. Giving or refusing consent to the disclosure of information is not among them.
‘(1) For the purpose of advising as to the exercise by the nearest relative of a patient who is . . . subject to guardianship under this Part of this Act of any power to order his discharge, any registered medical practitioner authorised by or on behalf of the nearest relative of the patient may, at any reasonable time, visit the patient and examine him in private.
(2) Any registered medical practitioner authorised for the purposes of subsection (1) above to visit and examine a patient may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or to any after-care services provided for the patient under section 117 below.’
‘(c) that the nearest relative of the patient unreasonably objects to the making of . . . a guardianship application in respect of the patient; or
(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from . . . guardianship under this Part of this Act, or is likely to do so.’
If the application is made by an approved social worker, the person appointed will be either the local social services authority or some other suitable and willing person (s 29(1) and (2)). The order lapses if the guardianship ends (s 30(4) and may be discharged on the application of the person appointed; but there is no provision for a nearest relative who has been displaced under ground (c) or (d) to apply for the order to be discharged (see s 30(1)).
‘On the hearing of the application the court may accept as evidence of the facts stated therein any report made by a medical practitioner and any report made in the course of his official duties by -
(a) a probation officer; or
(b) an officer of a local authority or of a voluntary organisation exercising statutory functions on behalf of a local authority; or
(c) an officer of a hospital authority,
provided that the respondent shall be told the substance of any part of the report bearing on his fitness or conduct which the judge considers to be material for the fair determination of the application.’
‘County court rules which relate to applications authorised by this Part of this Act to be made to a county court may make provision -
(a) for the hearing and determination of such applications otherwise than in open court;
(b) for the admission on the hearing of such applications of evidence of such descriptions as may be specified in the rules notwithstanding anything to the contrary in any enactment or rule of law relating to the admissibility of evidence;
(c) for the visiting and interviewing of patients in private by or under the directions of the court.’
This may be contrasted with the vires for the Mental Health Review Tribunal Rules 1983 in section 78(2) which, among other things, specifically allows provision to be made
‘(h) for making available to any applicant, and to any patient in respect of whom an application is made to a tribunal, copies of any documents obtained by or furnished to the tribunal in connection with the application, and a statement of the substance of any oral information so obtained or furnished except where the tribunal considers it undesirable in the interests of the patient or for other special reasons’.
The Data Protection Act 1998
The common law and the Human Rights Act
1998
Discussion
“The decided cases very clearly establish: (1) that the law recognises an important public interest in maintaining professional duties of confidence; but (2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure.”
The first example he gave of such an interest was the public interest in the administration of justice. Professional confidence does not generally confer a privilege against disclosure in legal proceedings. It has quite frequently to be breached in the course of litigation. Hence the basic documents upon which the guardianship is founded, the application, the medical recommendations and the renewal reports should be placed before a court hearing an application to displace the nearest relative. They would also have to be disclosed to a mental health review tribunal hearing an application made either by C or by his mother should she be displaced as nearest relative.
“It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by a court when reaching a decision adverse to that party.”
That principle may be qualified if there are competing interests sufficient to outweigh it. In particular, where the proceedings concern the welfare of a child or a patient, it may have to yield to the need to protect that person from harm or the risk of harm. However, that person also has an interest in the fairness of the trial and in having the material properly tested in court.
“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of those rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.”
Hence the right to see all the documents in a case may be outweighed by other considerations, but there must be a clear and proper public objective and the limitation must be proportionate to that objective. There are proper public objectives other than the protection of a child or patient from harm (see the discussion by Munby J in Re B (Disclosure to Other Parties), 19 July 2001). But no such objective has been put forward in this case, nor are some of the more obvious ones, such as national security or the protection of informants, relevant. In general, therefore, one would expect disclosure of all the information put before the court in proceedings under section 29 for the purpose of establishing that the nearest relative ‘has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from guardianship or is likely to do so’, unless there was a demonstrable risk of harm to the patient or others in so doing.
“The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
In that case, the failure of the local authority to disclose (or seek the court’s guidance about disclosing) the video of a child psychiatrist’s interview with the child, so as to give the mother a proper opportunity of challenging the evidence upon which their suspicions of child abuse were based, meant that she was not adequately involved in the decision-making process about the care of her daughter.
Lord Justice Clarke:
Lord Justice Kennedy: