Lewis v Secretary of State for Health & Anor

A doctor’s obligation of confidence may survive the patient’s death. Its duration and strength depend on the circumstances, including the intimacy and sensitivity of the information. Disclosure may nevertheless be authorised where the public interest in disclosure outweighs the public interest in confidentiality, provided strict safeguards prevent inappropriate identification or publication.

The statutory patient-information regime did not clearly authorise disclosure for an inquiry into historical post-mortem tissue removal. The court therefore relied on its general jurisdiction to make an advisory declaration and authorise disclosure subject to carefully defined confidentiality conditions.

The claimant, an occupational health physician, held medical and occupational health records concerning deceased former employees of the Atomic Weapons Establishment. The Redfern Inquiry, a confidential and inquisitorial inquiry not established under the Inquiries Act 2005, sought disclosure of records concerning the removal and analysis of human tissue at nuclear facilities.

The claimant was willing to disclose the records but sought the court’s authority because disclosure might breach continuing duties of medical confidentiality. The principal issues were whether confidentiality survived death, whether the Health Service (Control of Patient Information) Regulations 2002 authorised disclosure, and whether the court could authorise disclosure in the public interest.

1. Survival of confidentiality. It was sufficient for the purposes of the application that the duty of medical confidence was arguably capable of surviving the patient’s death. Professional standards, public policy, equitable principles and the decision in Bluck v The Information Commissioner and Epsom and St Helier University NHS Trust supported that conclusion. The obligation was capable of enduring for many years, particularly where the information concerned highly intimate post-mortem examinations and sensitive radiation results.
2. Statutory route. The court rejected the proposed authorisation under section 251 of the National Health Service Act 2006 and the Health Service (Control of Patient Information) Regulations 2002. It was artificial to characterise the removal of tissue after death as patient care or treatment. It was also difficult to bring the Inquiry’s historical investigation within the Schedule’s reference to audit, monitoring and analysing the provision made by the health service for patient care and treatment.
3. General jurisdiction and public interest. The court was satisfied that the public interest in establishing what had happened, providing answers to affected families, maintaining confidence in the NHS and nuclear industry, and enabling an inquiry sponsored by Ministers answerable to Parliament outweighed the competing public interest in maintaining medical confidentiality.
4. Safeguards and order. Disclosure by the claimant to the Inquiry, and onward disclosure to relevant stakeholders, was declared lawful in the public interest. The order required confidentiality, restricted disclosure to appropriate current or former employees who needed the records for the Inquiry, prohibited publication capable of identifying deceased persons or their families, and preserved permission to apply. There was no order as to costs.