Law Report: No right of access to health records: Regina v Mid Glamorgan Family Health Services Authority and another, Ex parte Martin - Queen's Bench Division (Mr Justice Popplewell), 14 May 1993

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A patient has no common law right of access to his medical records.

Mr Justice Popplewell dismissed an application by Trevor Henry Vaughan Martin for judicial review of the respondents' decisions refusing to disclose to the applicant his medical reports.

The applicant, now 45 years old, had suffered depression and psychological problems since 1966. He requested disclosure of his medical records for information about his past and formative years.

The first respondent refused disclosure to him and the second respondent, the South Glamorgan Health Authority, would consider disclosure on the condition that no potential litigation was contemplated by the applicant. Both respondents offered disclosure to a medical adviser nominated by the applicant. The offer was declined by the applicant.

The applicant applied for judicial review of the respondents' decisions, arguing that the refusal of access involved a denial of the respect for a person's private life and that a patient of sound mind had a right to receive all relevant information which he sought.

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

MR JUSTICE POPPLEWELL said that the Access to Health Records Act 1990 which established a right of access to health records did not govern the facts of this case, as the Act specifically excluded access to records which had come into existence before the commencement of the Act on 1 November 1991.

The Data Protection Act 1984 gave an individual a right of access to information held about him in computerised form.

In relation to health records the Data Protection (Subject Access Modification)(Health) Order 1987 (SI No 1903) provided that the Act did not apply where access would be either likely to cause serious harm to the physical or mental health of the data subject or be likely to disclose the identity of another individual.

Those Acts seemed an almost insuperable obstacle to the applicant's submission that there was a common law right.

It was submitted that since a patient had the right to receive relevant information prior to making a decision about treatment, he had a right to understand after treatment what treatment he had received.

There might of course be a difference between the doctor generally explaining what had happened and the patient being provided with the detailed written records which it was never intended for his eyes to see.

The opinion of the doctor was wholly the property of the doctor. The fact that the patient provided the original information did not entitle him to see the conclusions of the doctors based on that information.

None of the English authorities suggested a common law rule that the confidential relationship between a doctor and patient required, subject only to the exception of protecting informants, access as of right to ensure respect for private and family life.

All the English authorities referred to implicitly acknowledged that so far as medical records were concerned there was no access principle.

In so far as the courts had ruled on what a doctor should tell a patient it seemed there was an important distinction, albeit difficult to define, between a record prepared in the absence of the patient and an explanation to that patient which was likely to be or might be more guarded.

The various statutes referred to could only have come into existence in order to give a right of access to records which otherwise the patient did not have.

There was clearly no right at common law for this patient to have access to any records which pre-existed the 1990 Act.

Reference to article 8 of the European Convention of Human Rights (right of respect for private life) was of no assistance. The common law was quite clear and needed no assistance from Europe.

Even if the applicant did have some right of access to his records, it was conditional and the respondents had offered all that was necessary to comply with their duty to the applicant.

Ying Hui Tan, Barrister

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