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Roberts v Nottinghamshire Healthcare NHS Trust, High Court, 1 August 2008

5 September 2008
The issues

Disclosure – Data Protection Act – mental health – whether patient entitled to disclosure of a psychology report under the Data Protection Act.

The facts

The Claimant, 69, was detained as a patient at Rampton Hospital under Sections 37 and 41 of the Mental Health Act 1983. He was diagnosed as suffering from a psychotic delusional disorder and bi-polar effective disorder. He was convicted in 1989 of offences of making threats to kill and possession of a firearm with intent to endanger life. On the 5th October 1989 he was sentenced at Leicester Crown Court where he was made subject to a hospital and restriction Order and initially admitted to Rampton, a high security psychiatric hospital. He remained at various medium and high secure units between 1994 and 2004 and thereafter was readmitted to Rampton. The Claimant in the meanwhile pursued a Hearing before the Mental Health Review Tribunal and it was for the purposes of that Hearing that the Claimant’s solicitors sought the report. The Claimant made a Part 8 Application under the CPR and under Section 7(9) of the Date Protection Act 1998 for access to the report.

Between April 2006 and August 2007 a psychologist referred to in the Judgment as ‘A’ worked with the Claimant and, on the 24th September 2007 provided the Defendant with a report dated 3rd September 2007. A number of concerns were voiced in respect of the report. A letter dated 10th January 2008 was sent to the Claimant’s solicitors by the Defendant Trust setting out certain concerns of the Trust. The Claimant’s solicitors requested disclosure of the report pursuant to the Data Protection Act. The Defendant Trust refused to disclose the report. The Trust refused to confirm why the report had not been disclosed, although it told the Claimant’s solicitors that it had properly considered whether it was appropriate to do so.

The decision

One of the exemptions to disclosure under the Date Protection Act was provided for by Article 5 of the Data Protection (Subject Access Modification) (Health) Order 2000 applying to personal data consisting of information as to the physical or mental health or condition of a data subject. Paragraph 5 of that Order read:

“Personal data to which this Order applies are exempt from section 7 in any case to the extent to which the application of hat section would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person.”

“Likely” following R (on the Application of Lord) v Secretary of State for the Home Department 2003 connoted a degree of probability where there was a very significant and weighty chance of prejudice to the identified public interest. The degree of risk might be such that there “may very well” be prejudice to those interests, even if the risk fell short of being more probable than not. In the Court’s view the same approach applied in the context of the heath Order. The question was whether there may very well be a risk of harm to health, even if the risk fell short of being more probably than not.

The Court’s role under Section 7(9) was to review the decision of the data controller rather than to act as primary decision maker. Secondly, it had to determine without the benefit of sight of the data whether the data controller had appropriately concluded that one of the exemptions provided for under the Act or an Order applied. The Court would approach the matter with, what had been described in other contexts as, “anxious scrutiny”. A burden of proof was on the data controller to the civil standard.

Nonetheless, the Court retained a discretion under the Act as to whether to order relief, notwithstanding that the data controller had failed to comply with its disclosure obligations.

Had the Defendant failed to comply with the statutory requirements?

The Defendant had produced clear and compelling reasons, based on cogent evidence, that the Court should not order the report be released. On the same basis, the Defendant had persuaded the Court that the justification for this in terms of any exemption recognised by the Act should not be stated. The reasoning was contained in a Closed Judgment.

There was no injustice to the Claimant in not having the report. The Defendant did not intend to rely on it at the Hearing. The Tribunal had no jurisdiction to compel the disclosure of a report upon which the Defendant did not wish to rely. The Claimant had had permission to rely upon his own independent psychology report. He therefore had a fair opportunity of presenting his own psychological evidence and challenging the Defendant. Although a party had a right to a fair Trial, under Article 6 of the European Convention, this did not mean that he or she had an absolute or unqualified right to see every document.

Should disclosure be made to the Claimant’s legal representatives?

There was no power in the Court to order disclosure to the Applicant’s representatives for the purposes of determining the Application. Pending the determination of the issue of whether the Applicant ought to have access to the data, the Court could not require it to be disclosed at all, to either the Applicant or the Applicant’s legal representatives. Moreover, the Court had had no authority sited to the extent to which solicitors could withhold information from their clients. The general rule was that, in the absence of specific authorisation, lawyers were obliged to disclose all relevant information they had to a client. That authorisation could derive from statute, such as Rule 12(3) of the Tribunal Rules or from the client. Acting “in the best interests of a client” did not entitle a lawyer to refuse disclosure to a client of relevant information. In this case a special advocate had been appointed. The Court emphasised that the appointment of a special advocate was not automatic and it should not be thought that the appointment of one in this case would lead to a presumption that a special advocate would be appointed in future Applications under the Data Protection Act 1998. Each case would require consideration by the Court and the Attorney General as to the appropriateness of the involvement of the special advocate.

For reasons given in the Closed Judgment, the circumstances here were highly unusual and a special advocate was appropriate.

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