Durham CC v Dunn [2012] EWCA Civ 1654

Sensitive social work records may be sought during litigation, either as a subject access request under the Data Protection Act 1998, or simply by way of litigation disclosure. This case concerned a civil damages claim, but it is still useful as it states the position in relation to disclosure of social care records more generally.

In this case the claimant sought social work records to assist in pursing the damages claim. The District Judge considered the matter in terms of DPA principles, and ordered disclosure with redaction of the names and addresses of residents of the particular care home in issue. The claimant wanted those names and addresses as these people may have been potential witnesses.

The court held that the issue was, properly, one of litigation disclosure determined by reference to CPR Pt 31, rather than the Data Protection Act 1998.

The Court also stated that the issue was determined by balancing Art 6 interests against Art 8 interests, rather than by application of the principles of public interest immunity.

R(A) v Chief Constable of Kent Constabulary [2013] EWHC 429

This case provides a helpful example of the way in which Art 8 interests are to be weighed in determining when to disclose in the context of adult social care. The police in this case had disclosed allegations made against a care home nurse in an Enhanced Criminal Record Certificate which resulted in her failing to obtain employment. The allegations were clearly unreliable and had been made vindictively by the nurse’s disgruntled colleagues. The police’s decision to disclose had included a worryingly slapdash approach to the reliability of the allegations against the claimant.

The court took the unusual step of assessing for itself the reliability of the evidence against the nurse, before deciding whether disclosure had been Art 8 compliant. It held that when assessing the proportionality under Art 8, and balancing the need to protect vulnerable patients from the risk of illtreatment against the harm caused to the accused employee of disclosure, the balance tips in favour of non-disclosure when it is more likely than not that the allegations are either exaggerated or false. It was disproportionate for the claimant’s professional life to be blighted when the allegations against her had repeatedly been found to be unreliable.