Ashworth Hospital Authority v MGN Ltd
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD BROWNE-WILKINSON,LORD WOOLF,LORD NOLAN,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 27 June 2002 |
| Neutral Citation | [2002] UKHL 29 |
| Court | House of Lords |
| Date | 27 June 2002 |
[2002] UKHL 29
Lord Slynn of Hadley
Lord Browne-Wilkinson
Lord Woolf
Lord Nolan
Lord Hobhouse of Wood-borough
HOUSE OF LORDS
My Lords,
My Lords, I fully agree with my noble and learned friend Lord Woolf that this appeal should be dismissed for the reasons he gives. His analysis of the case law and the principles involved to my mind makes two things in particular abundantly clear. The first is that the jurisdiction recognised in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 to order disclosure of, inter alia, the identity of a source of information or documents does not depend on whether the person against whom the order is sought has committed a tort, a breach of contract or other civil or criminal wrong. It is sufficient but, it is important to stress, also necessary that that person should be shown to have "participated" or been "involved" in the wrongdoing which is at the basis of the application for discovery.
This latter requirement together with the residual discretion of the court as to whether it is right that an order should be made in all the circumstances provide a safeguard against an unjustified order for discovery. No one can or should forget the importance of the freedom of the press but it is plain as article 10 of the European Convention for the protection of Human Rights and Fundamental Freedoms (1953) and section 10 of the Contempt of Court Act 1981 require, that there are restrictions which are to be accepted as necessary in a democratic society.
The second point is that it is not a necessary precondition of the exercise of the jurisdiction that the applicant should have begun, or had an intention to begin, legal proceedings in respect of the allegedly wrongful act—in cases like these against the source. My noble and learned friend–s reference to the speeches in British Steel Corp v Granada Television Ltd [1981] AC 1096 and in particular to the judgments of Lord Denning MR, at p 1127, and of Templeman LJ, at p 1132, in the Court of Appeal seems to me to establish this point conclusively despite the very well argued submissions of Mr Browne QC to the contrary.
As to whether in this case the order was justified, I have no doubt that there was a sufficient and proportionate justification. The fact that Mr Brady may have initiated or consented to some publication of his medical records cannot possibly deprive the hospital of the protection which they patently need.
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Woolf and Lord Hobhouse of Woodborough. For the reasons that they give, I, too, would dismiss this appeal.
My Lords,
This appeal is concerned with the right of a newspaper to refuse to reveal its sources. It arises out of the publication on 2 December 1999 of an article in the "Daily Mirror" which was written by their investigations editor, Mr Gary Jones. The article included verbatim extracts of the medical records of Ian Brady (one of the Moors murderers), a patient at Ashworth Security Hospital ("Ashworthg"). He was, at the time of the publication, engaged on a well publicised hunger strike.
Ashworth Hospital Authority is responsible for the management of Ashworth. The authority is the claimant in the proceedings and respondent before your Lordships. The authority is one of the three special health authorities established by the Secretary of State for Health pursuant to sections 1 and 4 of the National Health Services Act 1977, as amended, for persons subject to detention under the Mental Health Act 1983 as requiring treatment under conditions of special security on account of their dangerous, violent or criminal propensities.
On 19 April 2000, Rougier J ordered the defendant, MGN Ltd, the publisher of the "Daily Mirror", by its proper officer within two working days to make and serve upon the authority a witness statement:
(i) explaining how it came to be in the possession or control of any medical records kept by the claimant in respect of Ian Brady whether that possession or control be of originals, copies or extracts;
(ii) identifying any employee of the claimant and the name of the person or persons (and any address, telephone and fax numbers known for such a person or persons) who were involved in the defendant acquiring possession or control of the said records.
MGN appealed against that order and on 18 December 2000 the Court of Appeal dismissed that appeal. In the course of the further appeal to their Lordships, MGN contend that Rougier J had no jurisdiction to grant the order, but that if he did have jurisdiction to grant the order, he was not entitled to do so in the circumstances of this case.
Background facts
On 30 September 1999, Ian Brady was transferred to another ward. He took objection both to the transfer and to the manner in which it was effected. In addition to making complaints to the police and through the National Health Service complaints procedure he went on hunger strike. At the same time he began a media campaign, writing repeatedly to the BBC and others and issuing information through his solicitor complaining about the way that he had been treated, giving details of his hunger strike and the manner in which he was affected.
Because of the substantial media interest which Ian Brady generated, the director of communications of Ashworth found it necessary to make 12 press releases between 30 September 1999 and 11 January 2000 answering inquiries for information. The release of the 2 October 1999 began by stating: "Ian Brady, a patient at Ashworth Hospital, has exercised his right to refuse permission for the hospital to disclose any clinical details about him". On 29 October, it was announced that he had refused food for a total of 30 days and that a program of "refeeding" had been introduced, which involved force feeding by means of a nasogastric tube.
On 2 February 2000, Ian Brady obtained permission to apply for judicial review, in order to challenge the continuing decision to force feed him. The hearing was held in private but, due to the public interest in the case, Maurice Kay J delivered his judgment in open court: see R (Brady) v Ashworth Hospital Authority [2000] Lloyd's Med R 355; (2001) 58 BMLR 173. Maurice Kay J ruled that force feeding was lawful since it was reasonably administered as part of the medical treatment given for the mental disorder from which Ian Brady was suffering. By virtue of section 63 of the 1983 Act consent was not needed for such treatment. The judgment set out in detail particulars of Ian Brady–s clinical history which related to his decision.
The source of the information sent to the Daily Mirror
It was Mr Jones's evidence that he did not know the identity of the initial source of the information, but that he assumed it to be an employee of Ashworth. However, he accepted that he did know the identity of the intermediary who supplied the material to him. It is also accepted that knowledge of the intermediary would in all probability lead to the identity of the original source. Mr Jones had previously dealt with the intermediary on the understanding that he would be paid for stories supplied. On this occasion he paid £1,500.
It was found by the Court of Appeal and was not disputed on this appeal that it was the overwhelming likelihood that the source provided the intermediary with a print out from Ashworth's computer database which is used to record data about patients ("PACIS"). This meant the source was probably an employee of the authority.
Rougier J found that the extracts of the information published in the article were no more than a watered down version of material which Ian Brady had placed already in the public domain in furtherance of his campaign.
The importance of confidentiality in relation to patients medical records
The importance of confidentiality of medical records is emphasised when a new member of staff is engaged at Ashworth. The contract of employment contains a clause:
"Disclosure of information. You must not whilst you are employed or after your employment ends disclose to any unauthorised person information concerning the authority's business or the patients in its care nor must you make any copy, abstract, summary or précis of the whole or part of a document relating to the authority."
It is part of the agreed facts that leaks to the press have a detrimental effect on security; treatment of patients and staff morale, because they may inhibit proper recording of information about patients; may deter patients from providing information about themselves; may damage the patient-doctor relationship, which rests on trust; may lead to assaults by patients on a patient about whom information is disclosed; may create an atmosphere of distrust amongst staff, which is detrimental to efficient and co-operative work; and give rise to fear of future (and potentially more damaging) leaks.
In the case of patients at Ashworth, it is particularly important that accurate records are kept because otherwise warning signs indicating that a patient is in a condition in which he could be a danger to himself, his fellow patients or the staff could be overlooked so inhibiting preventative action being taken.
It is not in dispute that Ashworth has itself carried out an appropriate investigation in an attempt to discover the source of the leak without success, and that the only way in which the source is likely to be discovered is as a result of an order such as that made by Rougier J. It is also not in dispute that the reason for seeking an order for disclosure is to discipline...
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