R (S) v Plymouth City Council

Confidentiality of information about an adult lacking capacity is not absolute. A local authority and the court must balance confidentiality against the proper administration of justice, the nearest relative’s access to legal advice and the courts, family-life participation, and the patient’s private life and welfare. The Mental Health Act 1983 gives the nearest relative an important role, including a power to discharge the patient. Its limited inspection provision does not exhaust lawful disclosure. Disclosure should be confined to information reasonably required for proper advice or proceedings, rather than becoming a fishing exercise. Unless disclosure presents a demonstrable risk of harm or another compelling public interest outweighs fairness, relevant guardianship material should be disclosed in confidence.

The appellant mother sought judicial review of the local authority’s refusal to disclose information concerning her adult son, C, who lacked capacity and was subject to guardianship under the Mental Health Act 1983. Maurice Kay J dismissed the application in the Administrative Court in September 2001. By the time of the appeal, the authority accepted that the mother’s psychiatric and social-work experts could inspect the relevant records, but it resisted direct disclosure to the mother and her legal advisers. The central issue was whether confidentiality, C’s private and family life, and the authority’s statutory responsibilities outweighed the mother’s need for information to obtain advice about discharging the guardianship and the possible displacement proceedings under section 29.

Majority decision. Hale LJ delivered the leading judgment and Clarke LJ agreed with her reasoning and conclusions. Kennedy LJ agreed that the appeal should be allowed but would have restricted disclosure to the mother’s expert advisers.

1. Both the common law and the Human Rights Act required a balance between confidentiality and the interests in disclosure. Relevant considerations included the administration of justice, the mother’s access to legal advice, both parties’ family-life rights, C’s private life, and the protection of C’s health and welfare. Professional confidentiality was important but could be overridden by a stronger public interest.
2. The nearest relative had an important statutory role under the Mental Health Act 1983, including the power to discharge a patient from guardianship. Section 24 provided only a limited entitlement for an authorised doctor to inspect records. It did not prevent the authority from disclosing further material needed for proper expert advice. The basic guardianship documents would ordinarily be relevant in proceedings under section 29, subject to any demonstrable risk of harm.
3. The mother’s common-law and Convention rights of access to legal advice and the courts applied even though displacement proceedings were contingent. Her decision to discharge and any resulting displacement application formed part of the same practical process. Proper advice required access to information relevant to the court’s decision.
4. Article 8 required respect for the family life of both mother and son and fair involvement in decision-making. Any interference with C’s private life had to pursue a legitimate aim and be proportionate. There was no evidence that disclosure to the mother, her advisers or the identified experts would harm C, and the request was limited to material required for professional advice.
5. The majority therefore ordered disclosure of the information required by the experts to those experts, the mother and her legal advisers. The appeal was allowed, with the costs of appeal; the order recorded no order as to other costs.

• Court of Appeal: The appeal from the Administrative Court was allowed. Hale LJ and Clarke LJ held that the relevant information should be disclosed to the experts, the mother and her legal advisers. Kennedy LJ would have limited disclosure to the experts. The judgment is reported at [2002] EWCA Civ 388.
• Administrative Court, Queen’s Bench Division: Maurice Kay J dismissed the mother’s application for judicial review in September 2001.