Re C (A Minor) (Evidence: Confidential Information)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE STUART-SMITH,LORD JUSTICE MANN |
| Judgment Date | 16 January 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0116-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0177 |
| Date | 16 January 1991 |
[1991] EWCA Civ J0116-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHELTENHAM COUNTY COURT
(HIS HONOUR JUDGE BOOTHMAN)
Royal Courts of Justice,
The President
(Sir Stephen Brown)
Lord Justice Stuart-Smith
and
Lord Justice Mann
91/0177
No. 1483/90(F)
MR M KALLIPETIS QC and MISS J POSTILL (instructed by Holmes, Tarling & Co, Gloucester GL1 2HT) appeared on behalf of the Appellant/Respondent.
MR R DENYER QC and MISS S JACKLIN (instructed by Watterson Todman, Gloucester GL50 1NS) appeared on behalf of the First Respondents/Applicants.
MR A McFARLANE (instructed by Winterbothams, Gloucester GL5 3BJ) appeared on behalf of the Second Respondents.
This is an appeal from an interlocutory ruling of His Honour Judge Boothman made in the course of the hearing of an adoption application relating to a young child given the name of C. I direct that no report should be made of this hearing which would lead to the identification of the child concerned.
The interlocutory ruling, which is the subject of this appeal, comes before the court with the leave of the learned judge and concerns the admissibility of evidence tendered by a witness to be called on behalf of the applicants, the proposed adopters. The witness is a registered medical practitioner who for a period of eight months, between the end of 1987 and September 1988, was the general practitioner on whose list the mother of the child was placed.
The adoption application came to be made in the following circumstances. The child concerned was born on 26th September 1988. Four days later the mother handed the baby to a social worker with a view to adoption. The child was immediately placed with temporary foster parents and very shortly afterwards, on 28th October 1988, the adoption panel of the local authority accepted that the child should be place for adoption and matched her with proposed adoptive parents. On 23rd November 1988 the baby was placed with prospective adoptive parents and has remained with them ever since. She has therefore spent only the first four days of her life in hospital in her mother's care.
An adoption application was made on 28th November 1988. That was listed for hearing on 7th April 1989. On the day before the hearing was due to take place the natural mother withdrew the consent which she had previously given and accordingly the hearing fixed for the next day was adjourned.
In due course a further date was fixed almost a year after the initial date, the 14th March 1990. On that day the applicant's solicitor served the mother's solicitor—who was then refusing to give her consent—with an affidavit sworn by the mother's former general medical. practitioner. The case was then adjourned because the mother's advisers required time to consider the position in the light of that affidavit. Subsequently directions for a further hearing were given and the learned judge, who have been apprised of the fact that the mother's advisers were going to object to the admissibility of the doctor's evidence on the grounds of alleged breach of confidentiality, asked that a skeleton argument be submitted to him. A skeleton argument running to several pages was then submitted to the court and on 24th May 1990 the judge was asked to rule on the admissibility of the doctor's evidence as a preliminary issue. He did not hear evidence on that occasion except for the fact that he himself put certain questions to the doctor. He had before him her affidavit which was sworn on 15th December 1989 and which it would appear must have been substantially drafted at a very much earlier date.
The mother's representatives argued that the evidence of the doctor should not be admitted on the ground that by volunteering this evidence the doctor was in breach of the duty of confidentiality which she owed to her patient. It was argued before the judge that there was a public interest in preserving the confidentiality of the relationship of doctor and patient which rendered this evidence inadmissible.
I should say that the issues in the adoption application itself to be considered by the learned judge in due course are firstly whether adoption is in the interests of this child and secondly, since the mother is refusing her consent, whether, as the applicant alleges, that consent is being unreasonably withheld. It was alleged to be in relation to that second issue that the doctor's evidence was relevant.
The learned judge ruled that the evidence should be admitted but he granted leave to appeal against his interlocutory ruling. Unfortunately that has meant further delay. This adoption application was due to be heard first as long ago as 7th April 1989. However, be that as it may, this court has now heard extensive argument upon this particular matter.
The appellant, as she is in this court, is the natural mother and on her behalf the court has had the advantage of submissions from Mr Kallipetis who was not in the case before the learned judge. He has put forward a helpful supplementary skeleton argument which simplifies a very much more substantial skeleton argument which had been previously lodged, and also a very lengthy notice of appeal which runs to no less than five pages. He has developed his submissions by an attractive oral argument in this court.
He submits that the law of this country will protect the confidentiality of information which is passed to another in the course of a professional relationship, but he acknowledges that there is no absolute privilege which protects such confidential information from disclosure. He asserts that the court always has a discretion, even where the evidence sought to be adduced is relevant and otherwise admissible in evidence, not to allow it to be admitted if to do so would necessitate a witness breaking a duty of confidentiality.
He argues that before the court will permit a person to disclose information which is otherwise protected by a duty of confidentiality, the court should satisfy itself that the information is necessary in the interests of justice; and that this should outweigh the public interest in maintaining confidentiality. He asserts that there are two competing public interests; the confidentiality between doctor and patient; and the public interest that justice in the particular case should be done.
He has referred to the case of W v. Edgell & Ors which was decided by this court last year and which is reported in (1990) 1 All.E.R. 835. In this case Mr Kallipetis acknowledges that in the light of all the evidence available to be heard in the substantive adoption application it is probable that a court would make an adoption order, but, he submits, the point raised in relation to the admissibility of this particular evidence by the doctor is of such importance that it ought to be considered separately. He submits that it should receive the separate consideration of the court.
As Mr Kallipetis also frankly acknowledges it is clear that the evidence of the doctor is relevant and material. The court has been invited to read the affidavit and I have to say that it appears to be highly relevant and highly significant. The doctor says in conclusion in her affidavit:
"She [the mother] does not accept that she has a dependency problem and until she does, help for this aspect of her problem is impossible. In this situation her priority will be in the future as it has been in the last eight months to obtain her sleeping tablets by whatever means she can. She will be unable to hold to any course of action for long which is detrimental to her own health. I cannot envisage how she could possibly be responsible for the health and welfare of a newborn, or the continuing care of the child over the years."
It is clear from that passage that the affidavit must have been drafted at or shortly after the birth of the child.
The doctor was asked by the judge how she came to make available the affidavit to the applicant's solicitors. The note of his judgment is before the court.This records that:
"She agreed she swore the affidavit on the 15th December 1989. I said to her that I was not forcing her to explain why she broke the rule of confidentiality. She said she was quite prepared to justify what she had done. She said there was a conflict of duty between her patient and the minor should have different needs. I chose for the minor. I did not consider the GMC's Handbook on Professional Conduct, but I believe it deals with conflict of interest between patient and minor. It is a delicate balance."
The judge then added in the course of his judgment:
"It is not for me to say if she was right or if she is in breach of the code of professional conduct…. I am satisfied Dr Beard has acted in good faith."
The judge then continued his judgment by saying: "I also have to approach this point as a balancing exercise". He referred to the many cases which had been cited on points of confidentiality and a breach of such a duty. He said that this is a totally different kind of case. It is a private case, heard in private and it involves the interest of a child. It is not the main factor. He cited a passage from Rayden; and said:
"In the context of the case involving the future of the child, I think the allegations and opinions if true are significant. I think the evidence is highly material, because it comes from the mother's own GP even though it only deals with the period 1988 to 1989, her opinion is highly material. She can of course be cross-examined upon what she says in her affidavit.
Miss Postill [who appeared before him for the mother] next submits that I ought not to...
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