Law Report: Patient may not see records / Regina v Mid-Glamorgan Family Health Services and another, ex parte Martin; Court of Appeal (Lord Justice Nourse, Lord Justice Evans and Sir Roger Parker),29 July 1994.

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A doctor or a health authority, as the owner of a patient's medical records, was entitled to deny him access to them on the ground that their disclosure would be detrimental to him.

The Court of Appeal dismissed an appeal by Trevor Henry Martin against the dismissal by Mr Justice Popplewell of his application for judicial review of decisions by Mid-Glamorgan Family Health Services Authority and South Glamorgan Health Authority, refusing him access to his medical records.

Robin Allen (Bindman & Partners) for the applicant; D Huw Lloyd (Welsh Office Solicitor) for the respondents.

LORD JUSTICE NOURSE said that since the latter part of the 1960s the applicant had made many requests for access to his medical records, which were not on computer and therefore not subject to the Data Protection Act 1984. In particular, he sought to know why, in 1969, he had been committed under the Mental Health Act 1959, and what the basis of his treatment then had been.

He took the view that he should be the judge of what were his own best interests. But his consultant psychiatrist considered that the records contained information that it would be detrimental for him to see.

The respondent authorities claimed an absolute right, as owners of the records, to control access to them, which they said it was not unreasonable for them to rely on. Their solicitor had written to the applicant's legal advisers refusing direct disclosure but offering to give conditional disclosure of them to a medical expert nominated by the applicant. That offer was not accepted.

The judge, having referred to the Access to Health Records Act 1990, to guidelines issued by the Department of Health, and to the House of Lords' decision in Sidaway v Bethlehem Royal Hospital Governors (1985) AC 871, held that the applicant had no right of access to the records at common law.

Nor, he held, had there been any breach of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (Cmd 8969), which, in any event, had no bearing on his decision as to the common law position.

Even if the applicant did have some right of access, the judge felt bound to hold it must be subject to the condition that his own medical adviser first consider whether the information was likely to harm him or anyone else; and that since the respondents had offered this much already, he would exercise his discretion against granting relief.

The 1990 Act established a prima facie right of access to health records by the individuals to whom they related, but that right could be excluded under section 5(1) where the information was likely to cause serious harm to the patient's physical or mental health, and in any case the right did not apply at all to records made before 1 November 1991.

Although this was a public law claim and did not depend on any contractual rights, a public body as the owner of medical records could be in no different position from that of a private doctor whose relationship with his patient was contractual.

As Lord Templeman observed in Sidaway, at p904: 'The doctor, obedient to the highest standards set by the medical profession, impliedly contracts to act at all times in the best interests of the patient. No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of (his) training and experience and (his) diagnosis'. The doctor must decide 'what should be said and how it should be said'.

A doctor, likewise a health authority, as the owner of a patient's medical records, might deny him access to them if it was in the patient's best interests to do so, for example if disclosure would be detrimental to his health. In the light of the respondent's solicitors' offer, that was a complete answer to the applicant's case.

However, his Lordship did not accept that a health authority, any more than a private doctor, had an absolute right to deal with medical records in any way it chose: the doctor's duty, likewise the authority's, was to act at all times in the best interests of the patient.

Those interests would usually require that a patient's medical records should not be disclosed to third parties; conversely, that they should usually be handed on by one doctor to the next, or made available to the patient's legal advisers if they were reasonably required for legal proceedings in which he was involved.