Anthony Dixon v North Bristol NHS Trust

An interim injunction will not be granted to restrain disclosure of confidential or private information where the claimant cannot show that he is likely to establish at trial that the disclosure should be prohibited. Duties of confidence arising from employment or an investigation process are not absolute. They may be outweighed by a stronger public interest, including patient safety, the duty of candour and the proper resolution of actual or contemplated litigation.

For data protection purposes, lawful processing may arise under Article 6(1)(c) or (e) of the UK GDPR. The Data Protection Act 2018 exemptions may also apply to disclosure necessary for legal proceedings. A data subject has no general veto over disclosure, and an accuracy challenge cannot ordinarily be used to rewrite findings or opinions recorded in an investigation document.

The claimant, a doctor, sought an interim injunction preventing an NHS Trust from disclosing an MHPS outcome letter and another document to solicitors and former patients pursuing or contemplating clinical negligence claims concerning his treatment.

He relied on breach of contract, breach of confidence, misuse of private information and data protection rights. The Trust accepted that the documents contained some confidential personal data but relied on its duties to patients, the duty of candour, the clinical negligence pre-action process and the resolution of prospective claims.

The central issue was whether the claimant could satisfy Human Rights Act 1998, section 12(3), by showing that he was likely to establish at trial that the proposed disclosure should not be allowed.

1. Application dismissed. The claimant failed to demonstrate that he was likely to succeed at trial on any of the causes of action relied upon. He therefore failed to meet the threshold under section 12(3) of the Human Rights Act 1998.
2. The proposed disclosure would include information having the necessary quality of confidence and would cause some detriment. However, confidentiality arising from the MHPS process was not absolute. Any duty could be overridden where disclosure was required in the public interest or by legal obligation. Disclosure to a limited group of former patients with a direct and legitimate interest was materially different from publication to the public.
3. The Trust had weighty and legitimate reasons for disclosure. It was entitled to take account of the agreed ADR process, the clinical negligence pre-action protocol and its wider duty of candour. What a court would order under CPR Part 31 did not define the limit of what the Trust could lawfully disclose voluntarily. The Trust was likely to establish that the proposed disclosure was justified and that use of the confidential information would not be unconscientious.
4. The claimant had not identified with sufficient precision the information in which he claimed a reasonable expectation of privacy. The court nevertheless assumed that some privacy interest existed. Applying the two-stage approach in ZXC v Bloomberg LP, that interest was comfortably outweighed by the Trust’s and the former patients’ countervailing interests.
5. The proposed processing was likely to be lawful under Article 6(1)(c) and/or Article 6(1)(e) of the UK GDPR. The clearest legal obligation was the duty of candour, and a sufficient duty was also likely to arise under the pre-action protocol. Schedule 2, Part 1, paragraph 5(3) of the Data Protection Act 2018 was also likely to exempt the disclosure where it was necessary in connection with prospective proceedings or for establishing, exercising or defending legal rights.
6. The data accuracy challenge was unlikely to succeed. An MHPS outcome letter recorded findings of fact and expressions of opinion following an investigation. Data protection legislation could not be used simply to require rectification of those findings, although other remedies might exist for alleged inaccuracy.
7. It was unnecessary to decide whether the claim’s true nub was reputational harm or whether the claimant’s alleged misconduct justified refusing relief. In any event, had the threshold been met, damages would have been an adequate remedy because the proposed disclosure was a limited and complex synthesis of material, not the paradigm case involving publication of a specific secret.