Roberts v Nottinghamshire Healthcare NHS Trust

Mr Roberts (R) suffers from a psychotic delusional disorder and bi-polar affective disorder and was admitted to a high-security hospital for which the defendant NHS trust is responsible. In preparation for a hearing before the Mental Health Review Tribunal, a psychologist prepared a report about R. The trust had concerns about the report and refused to disclose it to R who applied to the tribunal for disclosure. His application was refused on the ground that the trust was going to rely upon another report at the tribunal and R had permission to rely on his own psychology report.

R applied for disclosure of the first report under section 7 Data Protection Act 1998 (DPA), which gives a data subject a free standing right of action in the High Court. He also relied upon the Human Rights Act 1998 in support of his argument that he was not going to get a “fair trial” when his matter came before the tribunal, as the trust was in possession of a report that he had not seen. The judge gave two judgments, one open and one closed.

He concluded that there were good reasons for the trust to refuse to provide R with a copy of the report and that it was necessary and proportionate that an exemption should apply to prevent disclosure. He also found that it was not necessary for the trust to provide R with an explanation of why they had decided to withhold the report, or set out which exemption applied in this case. Although a party has a right to a fair trial under Article 6 of the European Convention on Human Rights that does not mean he has an absolute or unqualified right to see every document.

As for R’s fallback argument that the report should be disclosed to his legal representatives, the judge concluded that there was no power under the DPA to make such an order.

Comment:

The judge was asked to look at the report himself, without disclosure to either R or his advisers, and decide whether, in all the circumstances, the trust had acted properly in declining to disclose. He found they had, and they were not required to give any explanation for their decision.

In addition to providing a useful review of the correct approach to be applied to data subject access requests and what will amount to lawful processing of the request, this judgment also considers more generally the issue of disclosure of evidence to legal representatives but not to their client. Where redaction, or blocking out, of confidential content is not a practical option, the court have previously ordered disclosure to a party’s experts and legal advisers but not to that party.

However, creating a potential conflict between a client and his lawyer is not generally desirable. The judge in Roberts concluded that, in the absence of specific authorisation from statute or the client himself, lawyers must disclose all relevant information they have to a client. It is a contradiction in terms for a solicitor to undertake to act for a client and then to withhold relevant information and knowledge. The only exception the judge could think of would be a public interest exception where, for example, the client would, to the knowledge of the lawyer, misuse the information to break the law.

In the present case, R had given his informed consent to limiting disclosure of the report to his solicitors. The problem was that were he to seek to retract that undertaking, they conceded that they would consider themselves professionally embarrassed and would no longer be able to act for him. The client can always change his mind.