Stone v South East Coast Strategic Health Authority & Ors

Where publication of confidential medical information engages Articles 8 and 10, the court must examine the substance of the decision with close and penetrating scrutiny. It must decide whether the interference with privacy pursues a legitimate aim, answers a pressing social need and is proportionate. Neither Article 8 nor Article 10 has precedence. The court must carry out an ultimate balancing exercise.

Publication of a full inquiry report may be justified where the detail is necessary to understand the findings, assess institutional failures and learn lessons for public protection. A redacted report may be disproportionate if it materially distorts the inquiry or deprives the public of its factual basis. Processing sensitive personal data may be lawful where necessary for statutory functions or the management of healthcare services.

The claimant challenged the decision of three public authorities to publish in full an independent inquiry report concerning his care, treatment and supervision before the Russell murders. The report contained extensive medical, psychiatric, probation and social-service information.

He alleged that full publication would unlawfully interfere with his private life under Article 8 of the Convention and breach the Data Protection Act 1998. He accepted that some report should be published, but argued for a redacted or summarised version. The court determined whether full publication was justified under Articles 8 and 10 and whether it satisfied the statutory conditions for processing sensitive personal data.

1. The claim was dismissed. The decision to publish the inquiry report in full was justified and proportionate, and no relief was granted.
2. The court had to examine the substance of the publication decision, not merely the quality of the decision-making process. Review required a very high intensity because medical data is a central aspect of Article 8 privacy. The court adopted the close and penetrating examination described in R (SB) v Governors of Denbigh High School [2006] 2 WLR 719; [2006] UKHL 15 and R v Shayler [2003] 1 AC 247; [2002] UKHL 11.
3. Articles 8 and 10 had to be considered together. Neither had precedence. The court had to identify the legitimate aim, assess the importance of the specific rights claimed, consider the justification for restricting each right and apply proportionality to each before striking the ultimate balance. The court followed the approach described in Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22 and In re S (a Child) [2005] AC 593; [2005] UKHL 47.
4. The proposed redaction was not workable. It would remove the factual basis for the inquiry’s criticisms and recommendations, create a misleading impression and substantially deprive the report of value. The public interest required an informed account of what care and supervision had been provided, what went wrong and what lessons should be learned.
5. Under the Data Protection Act 1998, publication involved processing sensitive personal data. Schedule 2 paragraph 5(2) was satisfied. Schedule 3 paragraph 7 also applied because publication was necessary for functions exercised under an enactment, namely the power to commission and publish the inquiry under section 2 of the National Health Service Act 1977 and paragraph 3 of the National Health Service etc. Regulations 2002.
6. Schedule 3 paragraph 8 provided an additional basis. Publication concerned the management of healthcare services and was undertaken by bodies owing an equivalent duty of confidentiality. The court rejected the argument that paragraph 7 required an additional express safeguard.