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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Roberts v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 (QB) (01 August 2008) URL: https://www.bailii.org/ew/cases/EWHC/QB/2008/1934.html Cite as: [2008] MHLR 294, (2009) 12 CCL Rep 110, [2008] EWHC 1934 (QB), [2009] FSR 4, [2009] PTSR 415, [2008] LS Law Medical 586 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Clive Roberts |
Claimant |
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- and - |
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Nottinghamshire Healthcare NHS Trust |
Defendant |
____________________
Martin Goudie (instructed by Treasury Solicitors) Claimant (Special Advocate)
Nageena Khalique (instructed by Mills & Reeve LLP ) for the Defendant
Hearing dates: 29 July 2008
____________________
Crown Copyright ©
Mr Justice Cranston :
Introductory
Background
"2. The claimant is sixty-nine years of age. He is detained as a patient at Rampton Hospital, for which the defendant NHS Trust is responsible, pursuant to sections 37 and 41 of the Mental Health Act 1983. He receives care and treatment for his mental illness. He is diagnosed as suffering from
a psychotic delusional disorder and bi-polar effective disorder. He was convicted in October 1989 of offences of making threats to kill and possession of a firearm with intent to endanger life, and possession of a firearm without
a licence. On 5 October 1989 he was sentenced at Leicester Crown Court where he was made subject to a Hospital and Restriction Order. He was initially admitted to Rampton Hospital, a high security psychiatric hospital. He remained at various medium and high secure units between 1994 and 2004, but on 21 October 2004 he was readmitted to Rampton Hospital.
3. The lawfulness of his detention has been reviewed by the Mental Health Review Tribunal during his detention at medium secure units and at Rampton Hospital, and he has found on each occasion to be lawfully detained.
4. Between April 2006 and August 2007 the psychologist appointed to work with the claimant was a person to whom I shall refer as A. A was an employee of the defendant. On 24th September 2007, A provided the defendant with
a report on the claimant which was dated 3 September 2007. The defendant considered the report prepared by A. A number of concerns were voiced in respect of the report. A letter dated 10 January 2008 was sent to the claimant's solicitor by the defendant, setting out certain concerns of the defendant in this regard. The claimant's solicitors requested disclosure of the report on 21 December 2007 pursuant to the Data Protection Act. The defendant replied by letter dated 10 January 2008. The defendant indicated its intention to obtain further psychological evidence from a doctor, to whom I shall refer as B, who had replaced A as the claimant's named psychologist. The claimant again requested the report in a letter dated 22 January 2008. That request once again, was made pursuant to Section 7 of the Act. The defendant replied on 25 January 2008 confirming that it was aware of its duties under the Data Protection Act, but confirmed that it would not be providing a copy of the report prepared by A.
5. The claimant's solicitor wrote on 31 January 2008 to the Regional Chairman of the Mental Health Review Tribunal requesting disclosure of the report. That request was refused on the basis that the Regional Chairman did not have jurisdiction to order such disclosure.
6. On the 8 February 2008 the defendant again wrote to the claimant's solicitors confirming that it had considered the request for access to personal data and concluded:
"Having considered all of their obligations under the relevant Data Protection Legislation, our client is not prepared to provide you with any further information. Our understanding is that our client is under no obligation to do so. If you disagree with our interpretation we suggest you contact the Information Commissioner's Office for further clarification."
7. On 3 March 2008, a further request from the claimant's legal representatives for disclosure of A's report was made at a hearing of the Mental Health Review Tribunal. That application was refused on the basis that the defendant did not intend to rely on the report at the forthcoming hearing, that there was no statutory duty upon the defendant to provide the Tribunal with a psychology report in any event, that the MHRT had no jurisdiction to compel the defendant to disclose a report upon which it did not wish to rely, that a psychology report from B was to be relied on by the defendant, that the claimant had permission to rely on his own independent psychology report, and that the claimant therefore would have a fair opportunity of challenging the defendant's evidence and presenting his own evidence. The hearing before the MHRT was adjourned on the 3rd March 2008 to allow sufficient time for the preparation of the claimant's expert evidence. That decision of the MHRT has not been challenged by way of judicial review.
8. On 23 April 2008, the claimant's solicitors wrote again to the defendant requesting the report pursuant to section 7 (1) of the Act, and stating that the defendant's refusal was a breach of statutory duty and that there did not appear to be any exemptions to justify non-disclosure. On 6th May 2008, the defendant replied as follows:
"The Trust has complied with its duties under the Data Protection Act and the various Subject Access Modification Orders which apply to the DPA. You will no doubt be aware that there are a number of reasons for which access to medical records can be restricted or declined. The Trust has properly considered these when reaching its decision. You will also no doubt be aware that there is no duty or obligation on a Trust to confirm why certain parts of medical records have been withheld. Again the Trust has properly considered whether it is appropriate to do so."
9. On 12 May 2008, the claimant's solicitors responded in a letter accepting that the Tribunal did not have jurisdiction to consider the claim, but maintained that the defendant had failed to comply with its obligations under section 7 (1). It accepted that the Act does not require the defendant to give reasons for refusing access, but went on to say that if the defendant was relying on an exemption it was unreasonable for the defendant not to say so.
10. The restored hearing before the Tribunal is listed for the 19 August 2008. This is the background against which the claimant now wishes to pursue its application before this court for the disclosure of the report."
The Law
(1) The right to data
"(1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled —
…
(c) to have communicated to him in an intelligible form —
(i) the information constituting any personal data of which that individual is the data subject …"
Personal data is defined in section 1 of the 1998 Act as: data
"which relates to a living individual who can be identified –
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual …"
(2) Exemptions
"when such a restriction constitutes a necessary measure to safeguard:
(a) national security;
(b) defence;
(c) public security;
(d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions;
(e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters;
(f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e);
(g) the protection of the data subject or of the rights and freedoms of others."
Recitals 42 and 43 of the Directive read:
"(42) Whereas Member States may, in the interest of the data subject or so as to protect the rights and freedoms of others, restrict rights of access and information; whereas they may, for example, specify that access to medical data may be obtained only through a health professional;
(43) Whereas restrictions on the rights of access and information and on certain obligations of the controller may similarly be imposed by Member States in so far as they are necessary to safeguard, for example, national security, defence, public safety, or important economic or financial interests of a Member State or the Union, as well as criminal investigations and prosecutions and action in respect of breaches of ethics in the regulated professions; whereas the list of exceptions and limitations should include the tasks of monitoring, inspection or regulation necessary in the three last-mentioned areas concerning public security, economic or financial interests and crime prevention; whereas the listing of tasks in these three areas does not affect the legitimacy of exceptions or restrictions for reasons of State security or defence …"
Reflecting these provisions, there are exemptions from disclosure as set out at Part IV of the 1998 Act as well as in Orders made by the Secretary of State pursuant to specific provisions of Part IV. In particular section 30 empowers the Secretary of State to exempt from the "subject information provisions", defined in section 27 as including section 7 of the Act, personal data relating to health. Unlike the exemptions provided for under the Freedom of Information Act 2000, there is no distinction between "absolute" and "qualified" exemptions under the 1998 Act. In other words, data are either exempt or they are not.
"(1) Personal data to which this Order applies are exempt from section 7 in any case to the extent to which the application of that section would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person."
Paragraph 5(2) goes on to provide that a data controller who is not a health professional shall not withhold information constituting data to which the Order applies under the exemption unless the data controller has first consulted the person who appears to be the appropriate health professional. That health professional must be asked whether or not the exemption in paragraph (1) applies with respect to the information. In general terms the "appropriate health professional" is the health professional who is currently or was most recently responsible for the clinical care of the data subject in connection with the matters to which the information sought relates. Where there is more than one such health professional, that person is the health professional who is the most suitable to advise on the matters to which the information sought relates.
"In my judgment "likely" in section 29(1) connotes a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there "may very well" be prejudice to those interests, even if the risk falls short of being more probable than not."
(3) The court's role
"If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request."
To assist in that task the court is entitled to see the data. Again the relevant statutory provision, section 15(2), is worth quoting:
"For the purpose of determining any question whether an applicant under subsection (9) of section 7 is entitled to the information which he seeks (including any question whether any relevant data are exempt from that section by virtue of Part IV) a court may require the information constituting any data processed by or on behalf of the data controller and any information as to the logic involved in any decision-taking as mentioned in section 7(1)(d) to be made available for its own inspection but shall not, pending the determination of that question in the applicant's favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery (or, in Scotland, recovery) or otherwise."
Thus section 15(2) entrusts the court with a discretion to require the data, details of the exemption claimed, and information as to the logic behind the decision of the data controller. However, the court must not order disclosure of the information to the applicant or his representatives, pending determination of the issue as to whether the data is exempt.
"Parliament cannot have intended that courts in applications under section 7(9) should be able routinely to "second guess" decisions of data controllers, who may be employees of bodies large or small, public or private or be self-employed. To so interpret the legislation would encourage litigation and appellate challenge by way of full rehearing on the merits and, in that manner, impose disproportionate burdens on them and their employers in their discharge of their many responsibilities under the Act."
And then, after referring to the Data Protection Directive and to Article 8 of the European Convention on Human Rights, Auld LJ continued at [60]:
"Under both international legal codes, it is for the Member State to justify, subject to a margin of national discretion, any provisions enabling refusal of disclosure in terms of necessity and proportionality, and similarly, data controllers should have those notions in mind when considering under section 7(4)-(6) whether to refuse access on that account. So also should courts on application by way review of any such decision under section 7(9). But it does not follow that the courts should assume, if and when such a question reaches them, the role of primary decision-maker on the merits."
Claimant's submissions
"I accept that this application is made in a genuine attempt to resolve the issues which arise without placing in jeopardy those interests which the Defendant seeks to protect. However, the proposed procedure, that is that I should decide the issues finally on an ex-parte application, does cause me real concern for a number of reasons. The proposed course would lead to the court granting declaratory relief in the form of final declaratory orders as to the entitlement, or lack of entitlement, of the Claimant without hearing any representations on behalf of the Claimant. It would deny the Claimant any opportunity to take part in the proceedings. It would deny the Claimant any knowledge of the case which he has to meet, and it may well deny the Claimant any knowledge of the grounds on which the decision is ultimately taken. It is a matter of particular concern that it is proposed that this procedure should be followed in a case which is essentially concerned with the liberty of the subject. In this regard I have firmly in mind the common law principles, long established, that a party is in general entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party, and the principle audi alteram partem, that a party to litigation should know what case he has to meet. Similarly, I have in mind Article 5 (4), European Convention on Human Rights, where in non-criminal cases the approach of the Strasbourg Court has generally required disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses. I also have in mind the question as to whether the proposed procedure would comply with Article 6 of the European Convention on Human Rights."
"the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them." Halsbury's Laws, v.37, Practice and Procedure, para 12.
Issue 1: Has the defendant failed to comply with the statutory requirements?
Issue 2: A half way house? Disclosure to the claimant's legal representatives
"(3) Where the tribunal is minded not to disclose any document to which paragraph (1) applies to an applicant or a patient who has an authorised representative it shall nevertheless disclose it as soon as practicable to that representative if he is-
(a) a barrister or solicitor
(b) a registered medical practitioner
(c) in the opinion of the tribunal, a suitable person by virtue of his experience or professional qualification; provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the applicant or (where he is not the applicant) to the patient or to any other person without the authority of the tribunal or used otherwise than in connection with the application."
Conclusion