S v Plymouth City Council [2002] EWCA Civ 388 (CA)

Access to records – incapacity – nearest relative – confidentiality

The nearest relative of a patient in guardianship was entitled to direct access to the patient’s medical records, social services files and to the recommendations and reports leading to guardianship, in order to seek legal and professional advice on the exercise of her nearest relative functions. Overturning an earlier decision by the High Court which backed the decision of the local authority not to disclose the information, the Court of Appeal found that the local authority had adopted the wrong approach in assessing its obligations of confidentiality to the patient.

The proper approach, both at common law and under the Human Rights Act, was that a balance had to be struck between the public and private interests in maintaining the confidentiality of the information and the public and private interests in permitting or requiring its disclosure. There was no evidence that the LA had sought to strike that balance, having begun from the proposition that they had no power to disclose the information, although, by the time the case came before the appeal court, the LA had conceded that the information sought could be disclosed to Mrs S’s expert psychiatric and social work advisers. The question now for the court was whether the LA should have gone further and given Mrs S direct access to the information she was seeking.

The Mental Health Act 1983 accorded the nearest relative an important role, not only in securing a patient’s entry into guardianship, but also in bringing guardianship to an end. The NR was assisted in this role by the provisions of section 24 MHA 1983. There were two obvious gaps in section 24 in that it only allowed for a doctor to visit and examine records, whereas in guardianship the social work judgements about the care best suited to the patient’s needs may be just as, if not more, important than the medical opinions; and it provided only for hospital and aftercare records to be seen.

The balance to be struck in this case was between the confidentiality of the information; the proper administration of justice; the mother’s right of access to legal advice to enable her to exercise a right (to object to guardianship), which was likely to lead to legal (ie displacement) proceedings against her if she did so; the rights of both the patient and his mother to respect for family life and adequate involvement in decision-making processes about it (under art. 8 of the Convention); the patient’s right to respect for his private life; and the protection of the patient’s health and welfare.

The balance would not always lead to in every case to the disclosure of all the information a relative might possibly want, but in most cases it would lead to the disclosure of the basic guardianship documentation. In this case, the Court found, it must also lead to the disclosure of the particular information sought. The mother and her legal advisers had sought access to the information which her own psychiatric and social work experts needed in order to properly advise her. That limited both the context and the content of the disclosure in a way which struck a proper balance between competing interests.

Kennedy LJ, dissenting, was of the opinion that disclosure to the expert advisers was all that was required, bearing in mind the patient’s right to private life.

Decision of High Court:

Access to records – incapacity – nearest relative – confidentiality

This case involved an attempt by a Nearest Relative (the mother), who had not been displaced, to gain access to her son’s medical reports and the recommendations on which the guardianship order was based as well as his social services files.

Refusing the request, the Judge held that the Mental Health Act strikes a careful balance between patient confidentiality and the needs of a Nearest Relative for sufficient information to exercise his or her statutory functions.

Section 24 MHA provides for access by and disclosure to a medical practitioner, and by so limiting it, the legislature was deliberately adopting a policy other than one of direct and comprehensive disclosure to the Nearest Relative.

Similarly, rule 49.12 of the County Court Rules, which supplements the s29 displacement procedure, deliberately stops short of requiring disclosure of the substance of reports on the patient. This coherent policy would be undermined if a Nearest Relative could secure the kind of disclosure which was sought by Mrs S. Thus Social Services had to decide whether to preserve confidentiality or whether to override it. The law recognises an important public interest in maintaining duties of confidence; but 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.

Leave a Reply

Your email address will not be published.