Atole Timothy Enaholo v Totally PLC & Anor

A provisional medical opinion may amount to a diagnosis, whether or not formal testing or specialist assessment has occurred. Patient consent is not required for a clinician to form or communicate an independent diagnostic opinion; consent is distinct from consent to treatment. Clinicians may reasonably form provisional opinions about mental illness and recommend further assessment where the patient’s presentation provides objective grounds for concern. A claimant alleging unlawful disclosure of medical records must prove the disclosure on the balance of probabilities. An inference will not be drawn from absent witnesses where other plausible sources of the information exist. Disclosure within the NHS may be lawful where the statutory conditions concerning the facilitation of health services and the patient’s best interests are met.

The claimant brought a liability-only claim against Totally PLC and Imperial College Healthcare NHS Trust. He alleged clinical negligence arising from clinicians’ provisional views that he might be suffering from psychotic symptoms and their recommendation of a possible assessment under the Mental Health Act 1983. He also alleged that his medical records had been unlawfully disclosed to his employer and general practitioner, and sought rectification of the records.

The defendants denied negligence and disputed the alleged disclosure to the employer. They accepted that records had been sent to the claimant’s GP but maintained that this was lawful. The central issues were whether the clinicians had acted below the applicable professional standard, whether disclosure to the employer had been proved, whether disclosure to the GP was lawful, and whether rectification was justified.

1. Clinical negligence. The claim failed. The court considered it unnecessary to revisit the precise test discussed in Muller v King’s College Hospital NHS Foundation Trust [2017] QB 987, because the clinicians had acted properly whatever standard applied. The claimant’s account of radiation attacks, considered alongside normal investigations and the absence of an organic explanation, provided strong objective grounds for provisional concern about mental illness.
2. Meaning of diagnosis and consent. Diagnosis need not be technical, formal or preceded by specialist assessment. It may be an informal and provisional medical opinion based on a preliminary account and routine tests. Patient consent is not required for a clinician to form, express or pass on such an opinion. Requiring consent would impair the clinician’s independent judgment and ability to recommend appropriate treatment or further testing.
3. GPs and trainee doctors are not acting outside their expertise when forming and communicating provisional views about mental illness. Referral for specialist assessment is a normal consequence of such provisional opinions. The recommendation of a possible mental health assessment did not itself establish negligence, and no assessment under the Mental Health Act 1983 in fact took place.
4. Disclosure to the employer. The claimant did not prove on the balance of probabilities that either defendant disclosed his records to Peninsula. The court declined to draw an adverse inference from the absence of potential witnesses. Applying the reasoning relied on in Wisniewski v Central Manchester Health Authority [1998] PIQR P324, the circumstances did not justify such an inference because there were other plausible sources of the employer’s information.
5. Disclosure to the GP and rectification. The disclosure of the 30 June 2019 records to the GP was lawful. Under section 251B of the Health and Social Care Act 2012, disclosure was permitted where it was likely to facilitate health services and was in the claimant’s best interests. Those conditions were met because Dr Lewis considered that community mental health assessment might benefit the claimant. The request to remove the coded reference to psychotic disorder also failed; the coding was justified and there had been no wrongful alteration.
6. Judgment was entered for the defendants on liability. The claim was dismissed and no issues of causation or quantum remained.