Abertawe Bro Morgannwg University Local Health Board v Korashi

An employee who obtains patient information in the course of employment holds it subject to duties of confidentiality owed both to the employer and to the patients. After employment ends, the employee has no entitlement to retain or use that information without the consent of both. A public interest in exposing possible medical malpractice does not, without more, justify using confidential records to contact patients directly. Decisions about whether patients should be informed are primarily matters of medical judgment for the appropriate professional or medical authority. Summary judgment and delivery-up relief may therefore be granted where the proposed disclosures are speculative and disclose no triable issue.

The claimant health board sought final injunctive relief and delivery up of confidential patient information allegedly retained by Dr Korashi, a former employee. The information had been copied from patient records and the claimant’s electronic database. Dr Korashi wished to use it to contact former patients of another doctor and inform them of alleged deficiencies in that doctor’s qualifications, training and treatment.

On 27 May 2011, His Honour Judge Peter Clark, sitting as a High Court judge, gave summary judgment for the claimant and struck out Dr Korashi’s counterclaim in his absence. Dr Korashi applied to set that judgment aside, relying on his illness and his wife’s terminal illness. The central issues were whether he had any entitlement to retain or use the information, whether a public interest or human-rights justification required a trial, and whether the counterclaim disclosed a reasonable cause of action.

1. Application dismissed. There was no compelling reason to set aside the judgment of His Honour Judge Peter Clark or to order a trial. The underlying claim and counterclaim had no real prospect of success.
2. Patient records and the claimant’s electronic database contained confidential information in which both the health board and the individual patients had an interest. An employee had no right to copy or use that information except in the course of employment. After employment ended, Dr Korashi had no right to retain or use it without the consent of both the health board and the patient. The principles in Robb v Green [1895] 2 QB 1 supported delivery up and restraint of misuse. The reasoning in Ashworth Hospital Authority v MGN [2001] 1 WLR 515 confirmed that the employer and patients shared the relevant confidentiality.
3. The counterclaim contained general and speculative allegations. Apart from two identified cases, it did not allege particular injury caused by an identified operation. Assertions that patients might have had better outcomes were insufficient to raise a triable issue. The two cases had already been investigated and did not justify the proposed disclosures.
4. A public interest in disclosing systemic medical malpractice did not override the claimant’s confidentiality rights on these facts. Disclosure to patients would itself require unauthorised use of their names, addresses and treatment information. Dr Korashi could communicate concerns confidentially to the GMC or another appropriate professional body, without disclosing patient-identifying information.
5. Whether former patients should receive information of this kind was primarily a matter of medical judgment, not one for the court. Applying the approach in Riverpath Properties v Bramall (2000) TLR 108, a further hearing would serve no useful purpose where the result could not realistically change.

The judgment itself records that on 27 May 2011 His Honour Judge Peter Clark, sitting as a High Court judge, granted summary judgment for the claimant and struck out the counterclaim in Dr Korashi’s absence. The present court dismissed Dr Korashi’s application to set that judgment aside.