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 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. 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.

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.

In my judgment, procedural fairness in the light of Article 8 undoubtedly required in the present case that TB should have been given notice of the application for the witness summons, and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on W, the defendant.

As Keenan v United Kingdom (2001) 33 EHRR 38, paras. 110–115, illustrates, the distinction between negative and positive obligations is not always clearcut when a person with mental health problems is in custody and there may be a combination of factors, both acts and omissions, which leads to the overall conclusion that there has been a breach of Article 3.