A v XB (non-party)

An order for disclosure of a non-party’s confidential medical records in civil proceedings is justified only in a very exceptional factual situation. The court must first be satisfied that the documents might well support the applicant’s case or adversely affect another party’s case, and that disclosure is necessary for fair disposal of the claim or to save costs. Those requirements are cumulative. Even where they are met, the order remains discretionary and must be assessed against privacy, confidentiality, proportionality, safeguards, delay and the practical burden of disclosure.

A was seriously injured as a rear-seat passenger in a vehicle driven by X. Liability had been established, but causation and quantum remained in issue. X alleged that A’s psychiatric condition might have arisen from a genetic vulnerability rather than the accident, or that the accident had merely accelerated its onset.

X applied under CPR 31.17 for disclosure by B, A’s brother and a non-party, of his general practitioner, hospital and psychiatric records. The application raised the interaction between non-party disclosure, medical confidentiality, Article 8 privacy rights and the Data Protection Act 1998.

1. Application refused. X’s application under CPR 31.17 for disclosure of B’s confidential medical records was dismissed.
2. Rule 31.17 confers a discretion, but that discretion can be exercised only if both statutory conditions are satisfied: the documents must be likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary to dispose fairly of the claim or to save costs.
3. Following [2003] 1 WLR 210, the word “likely” imposes a modest threshold. It is enough that the documents might well support or adversely affect a party’s case; proof that this is more probable than not is unnecessary.
4. X satisfied that threshold. The expert evidence disclosed a serious causation issue, and B’s psychiatric condition and medication might have assisted comparison with A’s condition. However, the necessity requirement was not met. Existing evidence already enabled X to challenge causation, including A’s pre-accident behaviour and B’s use of similar medication.
5. Disclosure would interfere with B’s Article 8 rights and with the common-law duty of medical confidentiality. The records were also sensitive personal data under the Data Protection Act 1998. The common requirement of necessity did not justify disclosure on these facts.
6. In any event, the court would have refused the order in the exercise of its discretion. Proposed redaction and review by a treating psychiatrist would create substantial cost, complexity and further opportunities for objection. X’s delay, despite earlier knowledge of B’s condition, was also relevant.
7. The court stated that only a very exceptional factual situation would justify ordering disclosure of a non-party’s confidential medical data in civil proceedings. This was not such a case.