W v Egdell

A professional duty of confidence is supported by the public interest, but it is not absolute. A court must balance that interest against any stronger public interest favouring disclosure.

A psychiatrist who discovers information indicating a real danger to the public may disclose it to the responsible authorities where sound professional judgment shows that decisions about a restricted patient could otherwise be made on inadequate information. The disclosure must be reasonable in its recipient, content and extent. Whether it is justified is determined objectively by the court, although the professional’s considered judgment carries appropriate weight.

A restricted mental patient retained Dr Egdell, an independent consultant psychiatrist, to report for an intended application to a Mental Health Review Tribunal. The report raised previously insufficiently explored concerns about the patient’s longstanding interest in firearms and explosives and opposed his transfer from a secure hospital. The patient withdrew the application and refused consent to disclosure.

Believing that the report cast new light on the patient’s dangerousness, Dr Egdell sent it to the hospital’s acting medical director and urged its transmission to the Home Office. The patient claimed damages and other relief for breach of confidence.

Scott J dismissed the claim in [1989] 2 WLR 689. The central issue on appeal was whether the public interest in protecting professional confidence was outweighed by the public interest in ensuring that authorities responsible for the patient’s care, transfer and release possessed the information necessary to protect the public.

1. Appeal dismissed unanimously. The President, Lord Justice Bingham and Sir John May agreed that Dr Egdell was justified in communicating his report to the hospital authorities and encouraging its transmission to the Home Office.

2. Per Lord Justice Bingham, the law recognises an important public interest in maintaining professional confidence. That interest is not absolute and may be overridden by a stronger public interest favouring disclosure. Scott J had therefore erred in describing the patient’s interest as merely private. The duty of confidence was itself underpinned by a broader public interest.

3. The justification for disclosure is determined objectively by the court, rather than by the doctor’s subjective view. The court may nevertheless give appropriate weight to the considered judgment of a competent professional acting in good faith.

4. The decisive consideration was the danger that decisions leading directly or indirectly to the release of a person who had committed multiple killings while seriously mentally ill might be made on inadequate information. Where a consultant psychiatrist, exercising what the court regards as sound professional judgment, learns information giving rise to a real fear of consequent danger to the public, the psychiatrist may take reasonable steps to communicate the grounds of concern to the authorities responsible for the patient’s care, transfer and release.

5. The disclosure was properly confined to responsible recipients. It was also permissible to disclose the complete report: the opinion could not be evaluated without its factual basis, and a short extract would not permit a reliable assessment.

6. The report was not protected by legal professional privilege. The circumstances in which solicitors obtained it nevertheless strengthened the public interest in confidentiality and meant that only compelling circumstances could justify conduct injuring the patient’s perceived immediate interests without consent.

7. Lord Justice Bingham further considered that the result accorded with article 8 of the European Convention on Human Rights. Any protection for professional secrecy under article 8(1) was qualified by article 8(2), and the disclosure was lawful and necessary for public safety and the prevention of crime.

• Court of Appeal: The patient’s appeal was dismissed unanimously. Leave to appeal to the House of Lords was refused.
• High Court, Chancery Division: Scott J dismissed the breach of confidence claim against Dr Egdell in [1989] 2 WLR 689. Related claims against public authorities were also dismissed, but were not appealed.