R (on the application of TA) v North East London NHS Trust 01.11.11

In a case being managed by Kennedys, the Court of Appeal has upheld a refusal to grant permission for judicial review of a decision of an NHS trust that it would not investigate a complaint about a medical report where an investigation would require the trust to access medical records of a patient without her consent.  

In 2008, the Claimant’s former wife (Mrs A) became the subject of psychiatric assessments, which included a medical examination by a consultant psychiatrist employed by the Defendant. The psychiatrist’s report concluded that Mrs A was not suffering a mental disorder which required treatment under the Mental Health Act 1983.

The Claimant and Mrs A subsequently separated and in family proceedings to determine who would have custody of their child, Mrs A produced a copy of the psychiatrist’s report to prove to the court that she was capable of looking after the child. Mrs A was granted custody of the child.

In late 2009, the Claimant asked the Defendant to review the consultant psychiatrist’s decision making process and clinical judgment. The Defendant informed the Claimant that it would only investigate the Claimant’s complaint with the consent of Mrs A, as required by its policy and the Data Protection Act 1998. The Defendant later considered that it would require the Claimant’s medical records as part of the investigation. Mrs A did not consent to release of her medical records and the Defendant refused to investigate.

The Claimant brought judicial review proceedings against the Defendant on the basis that its decision to refuse to investigate was unlawful. The Claimant’s application and renewed application for judicial review was refused at first instance. The Judge upheld the Defendant‘s position that Mrs A’s consent was required before it carried out an investigation.

On appeal

The Claimant submitted that the Defendant had misunderstood its ability to access Mrs A’s medical records to enable it to investigate his complaint. He argued that the Defendant’s statutory duty under the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 compelled it to investigate.

Dismissing the appeal, the Court of Appeal unanimously held as follows:

  • The decision not to investigate without accessing Mrs A’s medical records was not unlawful - there was no such expressed statutory right to confidential medical records where the person they concerned had not given their consent to disclosure.
  • The remedy of judicial review was discretionary - insofar as the Claimant had concerns about his child’s welfare, there were more appropriate forums available to the Claimant, such as family or civil proceedings, or ombudsman.
  • Judicial review was an inappropriate remedy - there was no arguable case shown that the Defendant had adopted an unlawful approach.

Comment

This judgment helpfully confirms that NHS trusts must always obtain a patient’s consent before carrying out an investigation into their treatment, where a complaint is brought by a third party. It must be right that the specific patient’s consent is required before any such investigation can be undertaken.

There may be circumstances where such consent is not required, in accordance with the Data Protection Act 1998 exemptions. For example, where a professional body, such as the GMC, or the Health and Parliamentary Ombudsman is carrying out an investigation. However, such situations will be rare. The guiding principle must always be that patient confidentiality is sacrosanct.

The decision is, therefore, to be welcomed.