Mensah v Jones

Medical confidentiality does not prevent a doctor from disclosing relevant confidential medical material to his solicitor where the disclosure is necessary to obtain advice about disclosure obligations in existing legal proceedings. Under section 35(2) of the Data Protection Act 1998, personal data are exempt from the non-disclosure provisions where disclosure is necessary for the purpose of, or in connection with, legal proceedings. A claim for compensation for distress under section 13 requires damage as well, unless the processing was for a statutory special purpose. Section 20 of the Access to Health Records Act 1990 does not require a court order before such disclosure. A claim based on section 7 of the 1998 Act requires a written request under section 7(2).

The claimant, a patient of the defendant doctor, brought a second action concerning the defendant’s disclosure of a printout of the claimant’s medical records to the defendant’s solicitor. The disclosure was made while the defendant was required to give disclosure in earlier proceedings brought by the claimant concerning an alleged assault at the doctor’s surgery.

The Deputy Master granted summary judgment for the defendant and refused summary judgment for the claimant. Lawrence Collins J refused permission to appeal on paper. The claimant renewed his application before the High Court, alleging breaches of the Data Protection Act 1998, the Access to Health Records Act 1990, and the common law of confidentiality.

1. The renewed application for permission to appeal was refused. The earlier judgment was clearly correct, the proposed appeal had no real prospect of success, and there was no other reason for it to proceed.
2. The claimant’s medical records were sensitive personal data and the defendant was their data controller. However, section 35(2) of the Data Protection Act 1998 exempted the disclosure from the non-disclosure provisions because the printout was sent to the defendant’s solicitor for the purpose of, and in connection with, existing legal proceedings. The disclosure was necessary to obtain advice about the extent of the defendant’s disclosure obligations, including whether the surrounding circumstances of the incident were relevant.
3. Section 7(1) did not support the claim. There was no evidence of the written request required by section 7(2). In any event, section 7 did not prevent a doctor from sending relevant data to his solicitor for legal advice, including advice about duties under that section. Prompt notification by the solicitor was sufficient to discharge any notification obligation that arose.
4. A claim for compensation for distress under section 13 was unmaintainable because no damage was alleged and the processing was not for a special purpose within section 3.
5. Section 20 of the Access to Health Records Act 1990 did not impose an obligation to obtain a court order before sending the records to the solicitor. The common law duty of confidentiality likewise did not prevent disclosure of confidential material which might be relevant to the solicitor’s advice on the proper course in the earlier proceedings. Section 35(2) reflected the common law.
6. The complaint that the solicitor deliberately kept the defendant away from the earlier hearing to avoid cross-examination had no substance. There could have been no cross-examination at that hearing.

1. High Court (Chancery Division): the renewed application for permission to appeal was refused.
2. Deputy Master Lloyd: summary judgment was granted for the defendant and summary judgment for the claimant was refused.
3. Lawrence Collins J: permission to appeal was refused on paper.