Mark Anthony McGhee v Mersey Care NHS Foundation Trust (formerly known as North West Boroughs Healthcare NHS Foundation Trust)

The court may permit parties to use documents disclosed for litigation purposes outside the proceedings where the exercise is justified by the court’s inherent jurisdiction, the open justice principle and the interests of justice. Permission may extend to disclosure to relevant third parties and media organisations where that is necessary to enable a statutory safeguarding review to obtain, understand and use material critical to its work. The court should also ensure that persons potentially affected by the order have been given a proper opportunity to make representations.

This was a further determination on the papers in earlier proceedings concerning UXA and the Defendant. By consent, the court was asked to substitute Mr McGhee, executor of UXA’s estate, as claimant following UXA’s death, and to permit further litigation documents to be used outside the proceedings.

The proposed use was principally to assist an ongoing Safeguarding Adults Review commissioned by Wigan Adult Safeguarding Board under section 44 of the Care Act 2014. The central issue was whether the court should authorise disclosure and wider use of expert medical reports and UXA’s witness statement consistently with open justice and the interests of justice.

1. Order made. The court made the New Order by consent on the papers. It substituted Mr McGhee as claimant in his capacity as executor of UXA’s estate and granted permission for specified expert reports and UXA’s amended witness statement to be used outside the proceedings.
2. Statutory context. Sections 43 and 44 of the Care Act 2014 establish the Safeguarding Adults Board framework and require an SAB, in specified circumstances, to arrange a Safeguarding Adults Review. Section 44(5) requires each SAB member to co-operate in and contribute to the review, whose functions include identifying lessons from the adult’s case and applying them to future cases.
3. Permission for collateral use. The permission was justified and necessary in the exercise of the court’s inherent jurisdiction, having regard to the open justice principle and the interests of justice. The additional documents were materially relevant to the Review’s lines of enquiry, and access to them was necessary to understand the previously disclosed joint psychiatric statement and to enable the Review to complete and publish its work.
4. Scope of permission. Permission was properly granted on terms allowing disclosure to third parties, including media organisations and the Safeguarding Adults Board. Restricting disclosure solely to the Board would create practical difficulties for stakeholders involved in the Review and would impede appropriate reference to the documents in its final report.
5. Procedural fairness. The court was satisfied that the Defendant’s Chief Executive and Executive Director of Nursing had been notified and given an opportunity to comment, and that no further notification was required.

First-instance determination on an application in the existing proceedings. The judgment records the earlier judgment as UXA v Merseycare NHS Foundation Trust, [2021] EWHC 3455 (QB), reported at [2022] 4 WLR 30; that decision concerned earlier orders permitting specified documents to be used outside the proceedings.