Medical Records in UK Law

The extracts published consisted of observations of Brady by different members of the staff at Ashworth that were recorded as part of his medical records. Though they were personal to Brady, I consider that Ashworth had a clear independent interest in retaining their confidentiality. The Department of Health published, on 7 th March 1996, Guidance on the Protection and Use of Patient Information. This includes the following guidance under the heading, 'Who has a duty of confidence?'

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.

In my judgment, the true position is that it is always prima facie (I can do no better than the Latin) 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.

In addition, Mr Brewster (information manager), in his statement, sets out the reasons why it is important that the authority should be able to identify the employee or employees who are responsible for the wrongful disclosure. 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 situation here is exceptional, as it was in Financial Times Ltd v Interbrew SA [2002] 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 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.

Authorities cited by Mr Nelson QC, such as X v Y, make clear the difficulty facing a person claiming to be justified in disclosing medical information to the public at large in the public interest. The force of those authorities is not diminished by the approach to public interest disclosure approved by the Court of Appeal in London Regional Transport.

What it then did was to "examine whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued." The court noted that the information was "communicated by one public institution to another in the context of an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself had requested."