Mersey Care NHS Trust v Ackroyd

A court may order a journalist to identify a confidential source only where disclosure answers an overriding public interest amounting to a pressing social need and is proportionate to the legitimate aim pursued. The court must scrutinise the particular rights and circumstances as they stand when the order is considered.

The confidentiality of medical records carries great weight, but it does not automatically prevail over source protection. The source’s motive, the sensitivity and extent of the information, the journalist’s conduct, the risk of repetition, the practical prospect of redress and the effect of delay may all affect the balance. An appellate court should respect the trial judge’s fact-sensitive evaluation unless it contains an error of principle or is plainly wrong.

A source at Ashworth Hospital supplied the respondent investigative journalist with edited material derived from Ian Brady’s confidential clinical notes. Some of the information appeared in a newspaper. The appellant NHS trust sought a Norwich Pharmacal order requiring the journalist to identify his source.

The trust had previously obtained disclosure orders against the newspaper, upheld by the Court of Appeal and House of Lords, but those orders identified only the respondent journalist. Summary judgment against him was subsequently set aside by the Court of Appeal in [2003] EWCA Civ 663 because material factual issues required a trial.

Following trial, Tugendhat J dismissed the trust’s claim in [2006] EWHC 107 (QB). The central issue on the trust’s appeal was whether the judge had been entitled to find that identifying the source in 2006 was neither necessary nor proportionate, despite the exceptional importance of protecting confidential medical records.

1. Appeal dismissed. The trial judge correctly asked whether disclosure was necessary, in the sense of answering an overriding public interest amounting to a pressing social need, and proportionate to the legitimate aim pursued. Source protection is always prima facie in the public interest. It may be displaced only after careful scrutiny and a balance of the specific competing rights.

2. The Norwich Pharmacal threshold was satisfied because the source had wrongfully disclosed information obtained under an obligation of confidence owed to the hospital, and the journalist had become involved in that wrongdoing. The source did not need to be an employee, and the journalist did not need to be personally liable. Passing the threshold did not, however, determine whether disclosure should be ordered.

3. The confidentiality of medical records was of very high importance. The hospital had an independent interest in preserving its records, while the rights and welfare of its patients also carried substantial weight. Nothing in the decision reduced the protection afforded to such records or encouraged their unauthorised disclosure.

4. The judge was nevertheless entitled to give substantial weight to the particular circumstances existing in 2006. The disclosed material had been edited, was not highly sensitive medical information, and was similar to information which the patient had already made public. The source had not acted for payment, but from a misguided belief that disclosure served the public interest. The patient’s stance had changed, and the judge could not find that the disclosure violated a duty owed to him.

5. The judge could also consider the journalist’s responsible record of investigative reporting about serious problems at the hospital. The large and unidentifiable class of possible sources weakened the continuing cloud of suspicion and the practical prospect of disciplinary redress. Improved information-security arrangements, the absence of a similar subsequent leak and the diminished risk of repetition also reduced the need for an order.

6. The balancing exercise was heavily fact-dependent and value-laden. It was primarily for the trial judge. An appellate court should intervene only for an error of principle or a conclusion outside the range reasonably available. The judge had considered the material factors on both sides and was entitled to conclude that no pressing social need for identification had been convincingly established and that disclosure would be disproportionate.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 101, dismissed the NHS trust’s appeal and upheld Tugendhat J’s refusal to order disclosure of the journalist’s source.

2. High Court, Queen’s Bench Division: Tugendhat J gave judgment for the journalist after trial in [2006] EWHC 107 (QB), holding that disclosure had not been shown to be necessary or proportionate.

3. Court of Appeal (Civil Division): In [2003] EWCA Civ 663, allowed the journalist’s appeal from summary judgment and directed that the materially different factual issues should proceed to trial.

4. High Court, Queen’s Bench Division: Gray J had granted the trust summary judgment on 18 October 2002.