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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ackroyd v Mersey Care NHS Trust  EWCA Civ 663 (16 May 2003)
Cite as:  EWCA Civ 663
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Hon Mr Justice Gray
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE CARNWATH
| ROBIN ACKROYD
|- and -
|MERSEY CARE NHS TRUST
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
V Nelson QC and C Thomann (instructed by Capsticks) for the Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice May:
The Mirror Article
"The tube was inserted. An x-ray confirmed that it was appropriately placed. Mr Brady was clearly expecting at some level something along these lines would take place and took it all in a resigned fashion. He was courteous throughout."
The MGN Litigation
"In the present case the source abstracted information from the PACIS data base which he or she transmitted to the intermediary in breach of confidence and in breach of contract. The intermediary, knowing that the information had been obtained in breach of confidence, passed it to MGN, through Mr Jones. MGN knowing that the information had been transferred in breach of confidence, published extracts from it. In these circumstances claims for breach of confidence lie against MGN, the intermediary and the source. as against the source the claim can be brought in contract, as against all three it lies in equity."
"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the sources of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputational rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."
"The disclosure of confidential medical records to the press is misconduct which is not merely of concern to the individual establishment in which it occurs. It is an attack on an area of confidentiality which should be safeguarded in any democratic society. The protection of patient information is of vital concern to the National Health Service and, I suspect, to health services throughout Europe. This is an exceptional case. If the order made by Rougier J discourages press sources from disclosing similar information in the future, this will be no bad thing."
"It is in my judgment of the first importance to recognise that the potential vice the "chilling effect" of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer's confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a "chilling effect" in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facia contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way. That debate will arise under section 10 of the municipal legislation; it will arise more broadly by reference to Article 10 of the Convention, and in the light of the Strasbourg jurisprudence on Article 10."
a) the hospital had failed to establish that the unpublished material in Brady's "running records" was truly confidential in the sense that it was secret and not in the public domain;
b) as all the published information had been placed in the public domain by Brady himself, MGN was not a tortfeasor in publishing the extracts from the running records;
c) applying the Article 10 jurisprudence to the proper construction of section 10 and to the facts of the case, the authority had not established convincingly that an order for discovery was proportionate to a legitimate aim within Article 10(2) and strictly necessary in a democratic society.
"In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached."
"Medical records will always be confidential but this is particularly important in the case of the class of patients that the Authority is responsible for caring for at Ashworth."
" the court will take into account the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the contracting parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community. The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention."
"The situation here is exceptional, as it was in Financial Times Limited v. Interbrew SA  EWCA Civ 274 and as it has to be, if disclosure of sources is to be justified. The care of patients at Ashworth is fraught with difficulty and danger. The disclosure of the patients' records increases that difficulty and danger and to deter the same or similar wrongdoing in the future it was essential that the source should be identified and punished. That was what made the orders to disclose necessary and proportionate and justified. The fact that Ian Brady had himself disclosed his medical history did not detract from the need to prevent staff from revealing medical records of patients. Ian Brady's conduct did not damage the integrity of Ashworth's patients' records. The source's disclosure was wholly inconsistent with the security of the records and the disclosure was made worse because it was purchased by a cash payment."
The present proceedings
"In November 1999, I was approached by sources at Ashworth and was provided with information covering Mr Brady's first month on hunger strike in October 1999. The purpose of my sources in providing me with information including the PACIS notes was to enable the public disclosure of the way in which Mr Brady had been treated, which, consistent with the findings of the Fallon Report in other matters, had not been disclosed by Ashworth. I promised that I would not reveal the identity of my sources."
"We found Mr Daggett's description of the environment on Lawrence Ward to be largely accurate. Pornography was widely available on the ward; patients were running their own businesses; hospital policies were ignored; and security was grossly inadequate.
The child at the centre of the paedophile allegations was, in our view, being groomed for paedophile purposes. She was permitted, often unsupervised, to associate with men with appalling criminal records. That this was allowed to happen is disgraceful in what was supposed to be a hospital, and a high security hospital at that. Perhaps worst of all, the clinical staff did nothing about it, and some of them even judged it to be in the interests of the patient.
The management culture of the Hospital was dysfunctional. Senior managers were secretive, out of touch and totally unable to control this large institution. Four critical internal reports were suppressed. Ministers were mislead on two occasions about events at Ashworth. We have no confidence in the ability of Ashworth Hospital to flourish under any management. It should close."
"We have outlined the allegations made by Mr Daggett above. By far the most serious is the possible abuse of a young girl, "child A", who was allowed to visit patients on Lawrence Ward without supervision over a number of years. We thought it important to bring to public attention the nature of the crimes committed by Mr Hemming and Mr Corrigan, the two men "child A" visited. Mr Hemming had a very substantial history of paedophile activity with young girls, including indecent assault and attempted rape. On at least two occasions he enticed children into a secluded spot by impersonating a Police Officer. Mr Corrigan had a history of abduction and buggery of young boys. The offence that led him to be confined to Ashworth was the kidnapping, torture, sexual assault, mutilation and eventual murder of a 13 year old boy."
"What Mr Brady was subjected to during his move and at the start of his force feeding was excessive and incompetent. It represented very serious failings on the part of those responsible, even by the standards of Ashworth as described so graphically in the Fallon Report. I obtained the PACIS notes because of the exceptional circumstances surrounding Mr Brady's move. However evil Mr Brady is, Ashworth is responsible for his proper treatment. It is grotesque for a manager to stand behind a patient who is being force-fed, while making gagging noises to mock him. This was a "one off". I cannot imagine a source disclosing PACIS notes in any other situation.
The Fallon Report conclusively proved a catalogue of suppression of information on the part of Ashworth. My sources were motivated not by financial gain but by the desire for the public to be aware of a balanced version of the treatment of Ian Brady. The Fallon Inquiry came about as a direct result of disclosures made by patients and other sources at Ashworth. The Fallon Report recommended the closure of Ashworth. Without the disclosure of information by journalistic sources, the Fallon Inquiry may never have been launched and minuted and the Department of Health and the public may never have known about the matters over which the management of Ashworth were so severely criticised."
The Judge's Judgment
Grounds of appeal and submissions
"The source's disclosure was wholly inconsistent with the security of the records and the disclosure was made worse because it was purchased by a cash payment."
Discussion and decision
Lord Justice Carnwath:
" the true position is that it is always prima facie contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an over-riding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way." ( 1WLR 515 para 101).
"Medical records will always be confidential but this is particularly important in the case of the class of patients that the authority is responsible for caring for at Ashworth" (para 63).
However, this conclusion was also supported by reference to "the approach of the European Court" to medical records under Article 8, and was clearly intended as a statement of general application. Furthermore, there is nothing in the evidence before us which in any way undermines that approach to medical records in general.
"What Mr Brady was subjected to during his move and at the start of his force-feeding was excessive and incompetent. It represents very serious failings on the part of those responsible, even by the standards of Ashworth as described so graphically in the Fallon Report. I obtained the PACIS notes because of the exceptional circumstances surrounding Mr Brady's move. However evil Mr Brady is, Ashworth is responsible for his proper treatment. It is grotesque for a manager to stand behind a patient who is being force-fed, while making gagging noises to mock him. This was a 'one-off'. I cannot imagine a source disclosing PACIS notes in any other situation."
"The totality of the information disclosed to (the defendant) served to corroborate (Mr Brady's) grievances. The PACIS notes indicate how disturbed he became after the events of 30.9, the injury to his wrist, his attempts to pursue the grievance through the hospital/solicitor/police, that the hunger strike was genuine and was a protest at the mis-treatment etc. The rest of the information (see the second page of the Mirror article) clearly included an unfavourable account of the re-feeding which was at odds with 'official' version that Professor Sines had accepted."
This had to be seen against the background of the "long-standing general public interest in whether (the Hospital) is mis-managed" and the public's right to know about how those forcibly detained in closed psychiatric institutions are treated.
" the reasons why it is important that the authority should be able to identify the employee or employees who are responsible for wrongful disclosure. These include preventing further disclosure and removing the cloud of suspicion that at present hangs generally over the authority's employees who have access to the records which were published." (para 63)
It is far from clear that there is the same "pressing need" today. The vital principle as to the confidentiality of medical records has been established unequivocally by the House of Lords' decision, and employees who breach that principle in the future can be in no doubt of the risks that they incur. However, there is no evidence before us that a "cloud of suspicion" is still blighting activity at the hospital, or that there is today a pressing need to identify the perpetrator of something which happened so long ago, and, as far as we know, has not been repeated. Certainly, I would not regard it as a matter which is so clear that it can be determined on a summary application. Even accepting that there is no public interest defence, there remains an arguable issue whether the discretion of the Court should be exercised in favour of granting an order for disclosure in the present circumstances.
Lord Justice Ward: