The Key To Disclosure: Safeguarding Patient Confidentiality

The problem of how to deal with patients' confidentiality in the context of legal proceedings is a common one and the recent case of A Health Authority v X and Others1 is a helpful decision for solicitors, GPs and Legal Liaison Managers at Trusts and Health Authorities alike.

THE FACTS

An unnamed Health Authority applied for disclosure of medical records by the respondent GP (Dr X) and his partners in an NHS General Practice. The Health Authority wished to consider the extent of compliance by Dr X and his partners with their terms of service and accordingly sought disclosure of two categories of documents on grounds of public interest as follows:

Documents that had been produced to the court or generated forensically in the course of care proceedings heard last year by another judge of the Family Division (the individuals, mainly children, who were the subject of those proceedings, are or were patients of the practice). ('List A documents'); and

The records of 17 named patients or former patients of the practice ('List B documents').

Dr X and his partners did not contest the application but sought the court's guidance. They had attempted to obtain the appropriate consents from the patients, only two of whom did not consent. Dr X was concerned with the duty of confidentiality owed to his patients.

THE DECISION

Mr Justice Munby, in his judgment in the High Court of Justice, Family Division on 10th May 2001, considered the question of the confidentiality of a patient's medical records and the impact of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which protects respect for the patient's private and family life.

The judge was referred to two decisions of the European Court of Human Rights. In the case of Z v Finland 2 , two of the applicant's doctors were compelled to give evidence of her medical history, and subsequently her medical records were seized by the police. The applicant claimed that her rights under Article 8 had been breached. The court considered that the interference with the applicant's private and family life had been subjected to important limitations and was accompanied by effective and adequate safeguards. The questioning had taken place in camera with an order that the court's file, including transcripts of witness statements, be kept confidential for 10 years.

Furthermore, seizure and use of the applicant's medical records was supported by relevant and sufficient...