Re A (A Minor) (Disclosure of medical records to GMC)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE CAZALET |
| Judgment Date | 21 August 1998 |
| Judgment citation (vLex) | [1998] EWHC J0623-2 |
| Docket Number | No.W 56 of 1998 |
| Court | Family Division |
| Date | 21 August 1998 |
[1998] EWHC J0623-2
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice,
Mr. Justice Cazalet
No.W 56 of 1998
MR. R. TYSON (instructed by Messrs. Field Fisher Waterhouse) appeared on behalf of the plaintiff.
MR. P. HARRIS (instructed by the Official Solicitor) appeared as Amicus Curiae.
(As approved by the Judge)
This is an application by the General Medical Council (GMC) for disclosure of certain documents held by the Court. The application is made pursuant to the provisions of Rule 4.23 and/or Rule 10.20(3) of the Family Proceedings Rules l991. Also before the court is the Official Solicitor, who represents himself, appearing before me as amicus curiae, pursuant to the Order of this court dated 18th March l998.
The application is made by the GMC, pursuant to its statutory duty to investigate alleged instances of serious professional misconduct through its Professional Conduct Committee, in regard to medical evidence adduced in proceedings before me which I had occasion to criticise in my judgment. The GMC wishes to obtain disclosure of certain documents held on the court file in that case which concerned a Ward. The title, number, parties and all other matters appertaining to that case are unknown to the GMC. The GMC's interest in this case arose, in particular, following receipt of a letter of complaint and information dated 1 August l996.
The specific documents on the court file of which the GMC seeks copies are as follows: first, the transcript of my judgment. Secondly, all medical evidence given in the case, such to include all medical reports submitted in the proceedings, the transcript of the entire oral evidence given by all doctors at the hearing, all the child's medical records submitted in the proceedings, and copies of all the material supplied to the doctors to enable them (a) to prepare their reports and (b) to give evidence at court. Thirdly, all such other documents as may seem proper for disclosure to it.
Upon a similar type application arising out of the judgment in Re AB [l995] 1 F.L.R. 181, the process adopted by the court in order to enable the GMC to obtain copies of the relevant documents involved three separate court hearings. Both the Official Solicitor and Mr Tyson, for the GMC, are concerned to obtain directions from this court so as to reduce the necessity for there always being three separate hearings in respect of such applications. They ask the court to give directions so that costs can be saved by there being only two hearings when appropriate.
The procedure followed in regard to seeking the relevant documents used in the case of Re AB (above cited)
was as follows. The GMC applied ex parte to the court for directions as to the obtaining of the appropriate documents. At that first hearing the court directed that the Official Solicitor should be brought in as amicus curiae, subject to his consent, and that all papers on the court file in the case in question should be disclosed to the Official Solicitor as soon as was practical. At that stage no information was disclosed to the GMC at all in regard to the case itself. Accordingly the GMC, at the conclusion of the first hearing, was still unaware of the full identity of the case and indeed of the names of the parties thereto.
After the Official Solicitor had consented to act as amicus the full file was duly made available to him and upon the Official Solicitor having made himself fully conversant with the contents of the file, the GMC's application was restored back to the court to enable the court to make its determination as to whether it was appropriate to grant leave to disclose papers to the GMC. The court, having considered the views expressed by the Official Solicitor and having determined that there was at least an arguable case for such disclosure, then at that second hearing directed that only the identity of the case and the names of the parties should be disclosed to the GMC, subject to strict provisions as to confidentiality, so as to enable the GMC to make application inter partes at a further, that is third, hearing in order to obtain leave for the disclosure of any appropriate documents held by the court.
The parties to the case, having been notified of the GMC's application, all indicated in writing that they did not oppose the actual disclosure sought (subject to certain safeguards) . The court then granted leave for the material documents to be disclosed to the GMC subject to certain terms and conditions. At that third hearing, I note in passing that it was only the parties to the original proceedings who were heard on the question of granting the necessary leave. The doctor concerned was not a party and was, in all probability, unaware of the application that was being made. Directions were given by the court that as and when copies of the documents disclosed were made available to the doctor whose conduct was under consideration, he was not to disclose copies or the content thereof to any persons save to any legal advisor or expert instructed by him in consequence of any proceedings taken or to be taken against him by the GMC.
In the present case, this is the second hearing of the GMC's application to the court to grant leave for disclosure. The Official Solicitor has examined all documents on the court file; he has made clear his view that, in addition to the transcript of my judgment, only those documents referred to in specific terms under the second category, that is those documents which concern the medical evidence appertaining to the child, are to be disclosed. Mr Tyson, on behalf of the GMC, accepts that these documents are indeed the only ones which the GMC now seeks to obtain.
I turn now to the change in procedure from that which was followed after the judgment in Re AB (above cited) which the Official Solicitor and Mr Tyson propose. The Official Solicitor has helpfully indicated that in certain cases, and probably in the great majority, it may well be possible to save a substantial burden of costs through the process being dealt with by two hearings.
For this purpose I have been referred to Rules 4.23(1) and 10.20(3) of the Family Proceedings Rules l991.
Rule 4.23(1) provides as follows:
"1.Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to -
(a) a party,
(b) the legal representative of the party,
(c) the Guardian ad Litem,
(d) the Legal Aid Board, or
(e) a Welfare Officer,
without leave of the Judge or District Judge."
Rule 10.20(3) further provides:
"(3) Except as provided by Rules 2.36(4) and 3.16(10) and paragraphs (1) and (2) of this Rule, no document filed or lodged in the court office other than a decree or order made in court, shall be open to inspection by any person without the leave of the District Judge, and no copy of any such document, or an extract from any such document, shall be taken by or issued to, any person without such leave."
I should point out that Rules 2.36(4) , 3.16(10) and 10.20(1) and (2) are not material to this application.
It was suggested by the Official Solicitor that Rule 4.23 applies only to pending proceedings, and that this is a case in which Rule 10.20(3) is the applicable rule. Whilst Rule 10.20(3) clearly here applies, I do not consider that Rule 4.23 can possibly be said to apply only to pending proceedings. In my view Rule 4.23 is essentially concerned with imposing confidentiality on the parties concerned so that no improper disclosure of documents is made to a third party. Nevertheless in view of the wide wording of Rule 4.23 (see generally Rule 4.1(2) for the proceedings to which Rule 4.23 applies) I propose to approach this application on the basis that Rules 10.20(3) and 4.23 both apply.
I also note that there is no restriction placed upon the court by either Rule preventing it from giving leave upon an ex parte application if it considers that to be appropriate.
In deciding whether to grant leave in the present case, I have, in my view, to consider whether there are grounds for believing that the documents (or any of them) sought by the GMC should be disclosed in order to enable the GMC properly to carry out its statutory duties....
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