YSL v Surrey and Borders Partnership NHS Foundation Trust

Hearing dates: 14 th & 15 th June 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 22 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

There is an anonymity order in place for this case protecting the Claimant's identity and he will be referred to as the Claimant or YSL.

His claim against the Defendant is brought under data protection legislation, privacy and the Human Rights Act 1998. It concerns his patient records and what he regards as the unlawful processing and retention of his personal data by the Defendant. He also maintains a complaint about the accuracy of some of the data.

Paragraph 2 of his trial Skeleton Argument asserted:

“Since April 2011, D has been engaging in a pattern of unauthorized data collection about C, gathering excessive amounts of information without C's knowledge or consent. The collected data covers an extensive range of personal details, including intimate aspects of C's private life like his bathroom and eating habits, hobbies, sexual orientation, racial identity, medical data, and even future reproductive intentions. At this time C did not consent to the “treatment” nor was he aware of what was going [on] …”

The claim has something of a history, as I shall explain. As the Claimant said, it relates to matters going back to around 2011, and continuing thereafter.

The Claim Form was sealed on 10 March 2022 and served with Particulars of Claim (PoC). YSL filed and served a witness statement dated 19 April 2022. The Defendant filed a Defence in May 2022. YSL filed a Reply in July 2022.

In March 2023 the Claimant made an application for summary judgment. I mean no disrespect when I say this was largely a reiteration of what he sees as the merits of his claim. His witness statement in support and exhibits ran to over 150 pages. Senior Master Fontaine ordered that to be dealt with at a hearing (the Claimant had sought summary judgment without a hearing).

Then, on 6 June 2023, the week before the trial, which was listed for 14/15 June 2023, YSL filed a notice of discontinuance. That was signed by both parties. However, almost immediately, YSL withdrew it with the Court's consent.

On 9 June 2023 I made an ‘unless’ order requiring the Claimant to comply with trial directions which Deputy Master Fine had made in December 2022 requiring the filing of a bundle and Skeleton Arguments and the like, which the Claimant had not complied with. My order provided that in the event of non-compliance, the claim would stand dismissed.

Also on 9 June 2023, the Defendant applied to strike out the claim on the grounds, first and foremost, that there was a compromise or settlement reached between the Claimant and the Defendant as long ago as 2016 in relation what it said were the same matters largely or wholly covered by the present claim. Further or alternatively, the Defendant said the claim should be struck out on as an abuse of process on the basis of the principles in Johnson v Gore Wood & Co [2002] 2 AC 1, and for other reasons.

The Claimant complied with my unless order. In the days leading up to the trial there was a flurry of material from both sides, including Skeleton Arguments and evidence, and also draft Amended Particulars of Claim from the Claimant. Over 4000 pages of authorities alone were filed. There are numerous different bundles and supplementary bundles. I did essential pre-reading before the hearing, but there has needed to be extensive post-hearing reading and research.

I should make clear in relation to the draft Amended Particulars of Claim that no consent to amendment has been forthcoming from the Defendant pursuant to CPR r 17.1(2)(a), and the Claimant has not made an application under CPR r 17.1(2)(b) for the Court's permission to amend his PoC. This judgment therefore proceeds on the basis of the claim as presented in the PoC.

In the event, I heard the strike-out application and heard evidence on the trial (and YSL's summary judgment application) immediately thereafter, and reserved judgment on all matters. I afforded YSL a number of breaks during the case at his request. I also rose early on the first day of the hearing, again at his request. I bear (and bore) in mind that he is a litigant in person and that hearings are stressful. I am satisfied that YSL had a full and proper opportunity to present his case and he did not suggest otherwise (although I note his written submissions about the alleged lateness of the Defendant's strike-out application). The Defendant's case was presented with fairness and sensitivity by Mr McCracken.

In this judgment I will use the following abbreviations: Data Protection Act 1998 ( DPA 1998); Data Protection Act 2018 ( DPA 2018); General Data Protection Regulation ((EU) 2016/679) (EU GDPR); the retained version of the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of s 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419) (the UK GDPR).

I will refer several times to the ‘processing’ of data in this judgment. Article 4(2) of the UK GDPR states that ‘processing’ means:

“… any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;”

Background

YSL is currently a student but has done, or is also doing, other things.

I have taken some of the chronology that follows from the witness statement dated 9 June 2023 of Michelle Golden, a solicitor with the Defendant's solicitors Clyde & Co LLP (Clyde & Co), in support of its strike-out application. The witness statement is obviously verified by a statement of truth. I do not regard what follows as being controversial.

YSL was a patient of the Defendant under its CAMHS (Child and Adolescent Mental Health Services) from around April 2011 to the time of his discharge from CAMHS on 23 October 2014. During his time at CAHMS he was treated by, amongst others, Dr JW, a Clinical Psychologist, and Dr DG, a Child and Adolescent Psychotherapist

YSL was subsequently assessed by the Defendant's Psychiatric Liaison Service on 4 February 2016. He was by that time an adult.

The thrust (but not the entirety) of YSL's present claim relates to medical and other records held by the Defendant as a result of his interactions with it, mainly while he was under the care of CAMHS. To put it neutrally, his complaint is that certain records and personal data were unlawfully disclosed to third parties; that some are inaccurate (including in particular a potential diagnosis of autism); and that the Defendant's records retention policy whereby records are kept for 20 years is unlawful because it is disproportionate and breaches his fundamental rights, and he seeks erasure of his entire patient records as a result. He also complains about the processing of material by the Defendant received from Surrey Police about him via something called the Surrey Multi-Agency Sharing Hub (MASH), a mechanism by which different agencies can share information about adults potentially at risk.

Background to YSL's various claims against the Defendant from 2015 – 2023

I note from YSL's medical records in the bundle at E/121 that there is an entry for 5 January 2016:

“Tue 05 Jan 2016 08:20 … MM Acrobat Document: accreq [YSL] 1073953.pdf — Subject Access Request”

I take from this that YSL made a subject access request (SAR) around this time for his medical records. There is a similar entry on 25 July 2016, and there are a number of similar entries in later years in YSL's records.

YSL sent a letter to the Defendant notifying his intention to take legal action as long ago as 17 June 2016. YSL had complained to the Defendant in or around 2015 and an internal complaints procedure had followed. It would appear there had also been a meeting between the Claimant and staff from the Defendant.

The letter made a number of complaints, including about Dr JW. It said that she had sent a letter to YSL's school allegedly breaking his confidentiality, and undertook an autism assessment’. The letter also complained about Dr DG, including that he had telephoned YSL's school and had ‘confirmed’ increased obsessional behaviour and ‘Asperger's traits’.

The letter made many complaints about his records from his CAMHS treatment. It ended by stating that the Defendant had breached the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights (ECHR/the Convention) read with the Human Rights Act 1998. YSL stated he would be seeking ‘compensation … and should this go to court I will also be asked for other legal remedies’. High Court litigation was said to be contemplated by 21 June 2016.

In or around 29 July 2016 YSL sent a Part 36 offer to the Defendant. He sought £40,000 in compensation; erasure of all information relating to him, as he did not consent or was made aware of any storage of his data; a full apology; disciplinary action against Dr SM (another CAMHS...