The Upper Tribunal, in Dorset Healthcare NHS Foundation Trust v MH (2009), which can be accessed here, has provided some useful guidance for responsible authorities in respect of disclosure of medical records for the purposes of a Mental Health Review Tribunal. This, the first reported decision of the Upper Tribunal, sets out how the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the 2008 Rules) operate in practice.
When a patient’s representative requests access to the patient’s medical records, the starting point is that full disclosure of all relevant material should generally be given.
The Upper Tribunal did, however, recognise that medical records of many patients contain confidential third-party material, for example detailing reasons why relatives or carers would be unable to cope if the patient returned home.
Rule 14 of the 2008 Rules provides grounds for withholding disclosure of documents from a patient if disclosure is likely to cause serious harm to the patient or another person and it is proportionate to do so. The Tribunal also has general case management powers, which enable it to prohibit disclosure even where disclosure is not likely to cause serious harm but where there are other reasons for withholding information, such as a duty of confidence owed to a third party.
The burden is on the responsible authority to demonstrate that it is appropriate to withhold disclosure of particular documents. The following practical guidance is given:
- disclosure to the patient’s solicitors:
- the authority should disclose all documents to the patient’s solicitors subject to an undertaking not to disclose certain third-party documents to the patient;
- if the patient’s solicitors consider that the documents need to be disclosed to the patient, they should submit a skeleton argument to the Tribunal Office setting out their reasons;
- the authority may respond in writing.
- exceptionally sensitive material:
- where documents are considered so sensitive that the responsible authority wishes to avoid disclosure to the patient’s representative, they must serve a skeleton argument on the representative setting out the reasons for resisting disclosure;
- the representative has the opportunity to respond in writing.
In both situations, if this process does not resolve the issue, an application to the Tribunal is necessary.
While very helpful, this is only guidance and it is always open for either party to make an application to the Tribunal for specific directions