Dorset Healthcare NHS Foundation Trust M 3592 2008
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 08 January 2009 |
| Neutral Citation | 2009 4 |
| Subject Matter | Mental health |
| Respondent | MH |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | M 3592 2008 |
| Appellant | Dorset Healthcare NHS Foundation Trust |
IN THE UPPER TRIBUNAL Appeal No M/3592/2008
ADMINISTRATIVE APPEALS CHAMBER
Before: Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal (His Honour Judge Gary Hickinbottom CP, His Honour Judge Phillip Sycamore CP and Upper Tribunal Judge Mark Rowland)
Attendances:
For the Appellant: Bridget Dolan of Counsel instructed by Beachcroft LLP
For the Respondent: Paul Bowen of Counsel instructed by Peter Edwards Law
Decision: There be no decision on the appeal.
REASONS FOR DECISION
Introduction
1. This was an appeal from the First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health) against an interlocutory decision of 7 November 2008 directing disclosure of a detained patient’s medical records and a decision of 12 November 2008 at which the tribunal refused to review that decision. Permission to appeal was granted by the tribunal below.
2. The appeal raised important issues concerning the proper approach of NHS Trusts and other authorities holding patients’ medical records (which collectively we shall refer to as “responsible authorities”) where, in the context of an application in respect of a patient, they receive a request for disclosure of that patient’s medical records but consider that the records contain material supplied by third-parties which the responsible authorities consider is the subject of an obligation of confidence owed by them to those third-parties.
3. The circumstances in which the appeal has arisen are set out below (paragraphs 9 and following).
Jurisdiction
4. The first issue that arose was whether this tribunal had jurisdiction to entertain the appeal at all. In the light of Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262, Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749; [2007] 1 WLR 3033 and the decision of a Tribunal of Social Security Commissioners in CHR/3865/2005, we invited the parties to address us as to the scope of the right of appeal conferred by section 11 of the Tribunals, Courts and Enforcement Act 2007 given that, in each of those cases, it was made plain that not every determination of a Social Security Commissioner or a tribunal with jurisdiction in social security matters was a “decision” against which an appeal lay under social security legislation (sections 14 and 15 of the Social Security Act 1998 and their forerunners) which, like sections 11 to 14 of the 2007 Act, provided for appeals on points of law from one tribunal to a superior tribunal (a Social Security Commissioner) and from there to an appellate court.
5. Section 11(1) and (2) of the 2007 Act provides:
“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right of appeal to the Upper Tribunal on any point of law from a decision made by the First-tier Tribunal other than an excluded decision.
(2) Any party has a right of appeal, subject to subsection (8).”
Section 13, which provides for a right of appeal from a decision of the Upper Tribunal to the relevant appellate court, is in similar terms. Sections 11(5) and 13(8) list types of decisions that are “excluded decisions”.
6. Ms Dolan, with whom Mr Bowen agreed on this issue, primarily submitted that the 2007 Act could be distinguished from the earlier social security legislation because specific provision is made for excluding decisions from the scope of a right of appeal, which implies that decisions that have not been so excluded are within its scope. Thus, for instance, a decision of the Upper Tribunal refusing permission to appeal to the Upper Tribunal is excluded from the scope of the right of appeal under section 13 by section 13(8)(c) - and so there is no need to resort to a narrow construction of the word “decision” to achieve that effect, as was done in Bland. Section 11(5)(d) and (e) exclude from the scope of section 11(2) certain parts of decisions of the First-tier Tribunal made, or set aside under, section 9 and the Lord Chancellor has the power to exclude other decisions by order under section 11(5)(f), which power has not been exercised to exclude any classes of interlocutory decisions.
7. Alternatively, Ms Dolan relied upon a narrower ground. She drew attention to the short judgment of Sir Anthony Clarke MR in Morina where he said at [50]:
“I add a few words only to emphasise the point made by Arden LJ that the question is entirely one of statutory construction of a particular statutory provision, namely section 14 of the Social Security Act 1998. In some contexts the word “decision” might well include an interlocutory decision such as a refusal of an adjournment or an order to disclose documents. All depends upon the particular circumstances. In the particular context of section 14 of the 1998 Act, I agree that neither of the decisions complained of were appealable.”
She submitted that this case concerns interlocutory decisions ordering disclosure of documents, and was therefore distinguishable from Bland, Morina and CHR/3865/2005 which were all concerned with attempts to appeal against an appeal filter (whether a refusal of leave to appeal, a refusal to admit a late appeal or a decision to strike out an appeal against an unappealable decision of the Secretary of State). Whilst she accepted that it would very often be appropriate to refuse permission to appeal against other types of interlocutory decision, she submitted that such decisions are usually appealable in principle even on the basis laid down by these cases under previous legislation.
8. In the circumstances of this case, this issue could not entirely deprive us of jurisdiction in any event because, if there is no right of appeal, we could treat the appeal as an application for permission to apply for judicial review and waive the requirement to serve the First-tier Tribunal (such challenges by way of judicial review having been transferred from the Administrative Court to this tribunal: Lord Chief Justice’s Practice Direction: Classes of Cases Specified under Section 18(6) of the Tribunals, Courts and Enforcement Act 2007, 31 October 2008). However, although for reasons we shall explain later we do not consider that permission to appeal should have been given in this case, we are content to accept that we do have jurisdiction to hear this appeal. It is unnecessary for us to consider Ms Dolan’s primary submission because we accept that there is in any event no ground for construing section 11 in such a way that an interlocutory decision to direct disclosure is not within its scope. This is important, because an adequate remedy may not be available through an appeal against a final decision, by which time irreparable damage may already have been done through disclosure. This distinguishes the present case from Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 (reported as R(IB) 6/03), which is referred to in Morina and in which it was held there was no right of appeal against the refusal of an adjournment in a social security case. In the meantime, Ms Dolan’s wider ground will have to await consideration in another case in which it is determinative, and in which it is fully argued.
The Background
9. The Respondent patient (MH) was detained pursuant to section 3 of the Mental Health Act 1983 and made application to the First-tier Tribunal (Health Education and Social Care) (Mental Health) for discharge from detention. Those proceedings were stayed by the First-tier Tribunal on 12 November 2008 pending the outcome of this appeal brought by the NHS Trust. However, during the course of submissions we were informed that MH had been discharged from the section and was, at the time of this hearing, the subject of a community treatment order made under section 17A of the 1983 Act. MH had not made any application to the tribunal in relation to the community treatment order. It was agreed by the parties - in our view, quite correctly - that the appeal had therefore necessarily lapsed, and there was no order we could make that would have any practical implication for these parties. For these reasons, formally we shall make no order on the appeal.
10. However, the parties requested that we consider in any event giving guidance to responsible authorities who receive requests for disclosure of medical records under the 2007 Act scheme. Such requests are very common in the context of applications relating to patients and, we were informed, can cause considerable difficulties for authorities and potentially delay the substantive tribunal proceedings. We therefore agreed to give such guidance as we properly could, and heard full submissions in relation to the issues raised.
...
To continue reading
Request your trial
-
Malek and Others
...relation to which they assert a right or duty to withhold inspection. [31] He also cited Dorset Healthcare NHS Foundation Trust v M H [2009] UKUT 4 (AAC), in which the Upper Tribunal of that Chamber began its judgment at [20] by saying that “the starting point is that full disclosure of all......