TA, R (On the Application of) v North East London NHS

Duties under the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 do not, without express wording, confer power to obtain a patient’s confidential medical records where consent is withheld. A duty to investigate efficiently cannot be converted into an implied statutory right of access, and section 35 of the Data Protection Act 1998 does not create that power.

Judicial review is discretionary. Permission may be refused where the claim is an inappropriate collateral challenge to family proceedings and other remedies are available, including the family court, the appropriate professional body and the Parliamentary Health and Social Services Ombudsman. The court also corrected the lower court’s reliance on the Civil Procedure Rules: family proceedings were governed by the Family Proceedings Rules 1991, under which the report could be communicated as necessary to particularise the complaint.

Mr TA complained that a consultant psychiatrist’s report prepared for family proceedings concerning his former wife had been defective and had contributed to the custody arrangements for their child. He complained to the respondent NHS Foundation Trust, which declined to investigate without Mrs TA’s consent to access her complete medical records.

The Administrative Court, on a renewed application, refused permission to apply for judicial review. Mitting J held that the report could not be used outside the family proceedings because of the Civil Procedure Rules 1998 and the principle identified in Harman v SSHD [1983] 1 AC 280. The Court of Appeal held that this reasoning was erroneous because the Civil Procedure Rules did not apply to family proceedings, but considered whether permission should nevertheless be refused on the statutory and discretionary grounds.

The Court of Appeal unanimously dismissed the appeal and upheld the refusal of permission to apply for judicial review.

1. Procedural error. Mitting J had applied CPR 31.22 to the use of the psychiatrist’s report. Under CPR 2.1, however, the Civil Procedure Rules 1998 did not apply to family proceedings unless another enactment applied them, and no such enactment was identified. The applicable regime was the Family Proceedings Rules 1991, particularly rule 11.4.1(c). That rule permitted Mr TA to communicate the report’s contents to the Trust where necessary to give substance to his complaint. The lower court’s reasoning was therefore mistaken, although the mistake did not justify permission.
2. No implied power to obtain medical records. The Trust accepted, for the purposes of the appeal, that the complaint fell within regulation 5(1)(b) of the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. The court nevertheless held that the duties to handle and investigate complaints efficiently and properly did not imply a power to obtain confidential medical records without the patient’s consent. Any such power, particularly concerning highly sensitive medical records, would need to be express. Section 35 of the Data Protection Act 1998 did not supply that missing power.
3. Unresolved statutory scope. The judges expressed reservations, but did not decide, whether Dr T was acting as an employee of the Trust, whether the Regulations covered clinical judgment given in advising a family court rather than the Trust’s own functions, and whether Mr TA was a person affected for regulation 5(1)(b).
4. Discretionary remedy. Judicial review was inappropriate in any event. Alternative remedies were material. The family court was the appropriate forum for concerns about the child and the weight of the report; alleged professional misconduct should be raised with the appropriate professional body; and complaint-handling concerns could be taken to the Parliamentary Health and Social Services Ombudsman. Hughes LJ additionally characterised the proposed claim as a collateral attack on proceedings in another court.

The Trust had therefore shown no arguable unlawful approach, and permission was refused.

• High Court, Queen’s Bench Division, Administrative Court: Mitting J refused permission to apply for judicial review, relying on the restriction in CPR 31.22 on using a document disclosed in private proceedings.
• Court of Appeal (Civil Division): The court held that the lower court had applied the wrong procedural regime, but upheld the refusal of permission on the basis that no arguable unlawful approach was shown and judicial review was inappropriate. Appeal dismissed.