AB, R (On the Application Of) v Northumbria Healthcare NHS Foundation Trust & Anor (Rev 1)

Judicial review is a remedy of last resort. Where an adequate alternative remedy exists, permission should ordinarily be refused unless there is a proper reason to proceed directly by judicial review. A complaint to the Information Commissioner under Data Protection Act 2018, and in appropriate cases proceedings under the Act or the Equality Act 2010, may provide such remedies.

Inaccurate medical information may be corrected without requiring deletion of the original record. Retention may remain justified where the record explains subsequent clinical or behavioural events, provided the inaccuracy is properly identified and corrected. Processing for health-related purposes does not depend on consent merely because consent was involved in the original referral.

The claimant, Mrs AB, sought permission for judicial review against two NHS foundation trusts concerning the retention of an inaccurate referral in the medical records of her 17-year-old son, V. The referral inaccurately described the state of babies’ dress and the frequency of masturbation. The first trust investigated the complaint, supplied corrected information and asked the second trust to delete the original referral. The second trust retained the referral but added corrective entries.

Permission had been refused on the papers by His Honour Judge Saffman on 30 April 2020. The claimant renewed the application orally and also sought to adduce telephone transcripts. The central issues were standing, delay, the availability of adequate alternative remedies, and whether the alleged breaches of data protection, equality and human-rights law gave the claim a real prospect of success.

1. Application for further evidence. The transcripts concerning the GP practice were not relevant to the records challenged in the proceedings and added nothing material to the evidence already before the court. The application to adduce them was dismissed.
2. Adequate alternative remedy. Judicial review is a remedy of last resort. On the facts, a complaint to the Information Commissioner under s165 of the Data Protection Act 2018 was an adequate alternative remedy which should have been pursued first. The claimant had pursued that route in relation to the first trust, and the Information Commissioner’s decision made it unnecessary to insist on a separate complaint against the second trust. The possible remedies under ss167–168 of the Act also provided an adequate route. It was unnecessary to determine whether separate proceedings under s114 of the Equality Act 2010 were required.
3. Merits. Even if permission were not refused for failure to pursue an alternative remedy, the claim had no real prospect of success. The admitted inaccuracies had been corrected by communications and corrective entries. The alleged right to erasure did not arise merely because the original referral had involved consent. The relevant processing could instead be justified by health-related grounds under the GDPR and the Data Protection Act.
4. The court rejected the suggestion that the records had been retained under an unlawful inflexible policy. In any event, retaining the original referral was materially relevant because it showed precisely what information had been communicated and helped explain the subsequent reaction recorded in the medical history. A corrected summary would not necessarily provide the same evidential context.
5. Permission to apply for judicial review was refused. The application was not certified as totally without merit. Consequential matters were left for agreement or further hearing.

• High Court (Administrative Court): permission was refused on the papers by His Honour Judge Saffman on 30 April 2020. The claimant renewed the application orally before His Honour Judge Davis-White QC, who refused permission.