Medical records not as private as they may first appear under human rights law

28 May 2010 by Adam Wagner

General Dental Council v Rimmer [2010] EWHC 1049 (Admin) (15 April 2010) – Read judgment

A dentist has been ordered to hand over his patients’ medical records to a court in order to help his regulator prosecute him for misconduct. The case raises interesting questions of when the courts can override patient confidentiality which would otherwise be protected by the Human Rights Act.

When health professionals are being prosecuted for misconduct,their patients’ confidential records will almost invariably be disclosed to the court if requested, even without the patients’ consent. Some may find this surprising, given the fact that medical records almost invariably contain highly private and potentially embarrassing information which a person would justifiably not want disclosed in a public court. However, the situation is not as simple as it first appears, as demonstrated by the recent case of an allegedly dodgy dentist.

Medical records confidential, sometimes

Mr Rimmer is currently being investigated by the General Dental Council (GDC) for misconduct. The allegations relate to 16 child patients who received dental treatment under sedation. Amongst other things, it is alleged that Mr Rimmer has retrospectively amended some or all of the computer records of the 16 patients.

In order to investigate the allegation, the GDC applied to the court to copy the entirety of Mr Rimmer’s computer hard drives, including the medical records of all of his patients, in order to determine whether any of the computer records of the 16 patients have been altered.

It is a fundamental principle that patient’s dental or clinical records are protected by doctor-patient confidentiality, under health legislation as well as Article 8 of the European Convention on Human Rights (the right to privacy). As the European Court of Human Rights put it in Z v Finland (1997) 25 EHRR 371, para 95:

Respecting the confidentiality of health data is a vital principle in the legal system of all the contracting parties to the Convention. It is crucial not only to respect the sense of privacy of the patient but also to preserve his or her confidence in the medical profession and in the health services in general.

The principle of confidentiality is subject to exceptions. It does not apply to anonymised records if they can no longer be used to identify individual patients. However, in Mr Rimmer’s case the hard drives could not be accessed without identifying the individual patients. In such cases, the court can sanction the disclosure of confidential records if sufficient justification exists. This involves carrying out the balancing exercise which underpins Article 8; confidentiality on the one hand versus the ‘public interest’ on the other.

In cases such as Mr Rimmer’s, the balance is between the confidentiality of the individuals’ medical records as against the public interest in regulating the health service and bringing effective prosecutions against health professionals. Any breach must be proportionate and necessary in light of these considerations. By reference to Article 8(2), disclosure must be in accordance within the law, it must be necessary in a democratic society and proportionate and it must be for a stated and legitimate purpose

Records will usually be disclosed

For guidance, Mr Justice Llyod Jones looked to the case of A Health Authority v X and others [2001] EWCA Civ 2014. That case was concerned with disclosure of medical records in connection with proceedings under the Children Act 1989. In the judgment, Thorpe LJ said  “There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of professional disciplinary hearings, particularly in the field of medicine.” He continued that “A balance still had to be struck between competing interests. The balance came down in favour of production as it invariably does, save in exceptional circumstances.”

Following those principles, the judge in Mr Rimmer’s case said:

The court, in assessing the need for disclosure, will look to see if there is a compelling public interest in the disclosure which justifies what would otherwise be a breach of confidentiality and which satisfies the ECHR criteria of necessity and proportionality. It will also want to see that there are effective and adequate safeguards against abuse, in particular for the patient’s confidentiality and anonymity.

The fact that the balance “invariably” comes down in favour of disclosure of the records may seem surprising. This makes clear the high value placed by the courts on the effective regulation of the health profession. It is not surprising, however, in light of the Court of Appeal judgment in A Health Authority, that the judge in Mr Rimmer’s case came down in favour of the hard drives being handed over and the records being disclosed. Mr Justice Lloyd Jones concluded that

I am satisfied, first, that, as a result of the declarations which I propose to grant, the disclosure will be in accordance with the law. Secondly, I am satisfied that in this case the public interest in enabling effective disciplinary proceedings to be considered and conducted by a regulator against a dental practitioner is a proper and lawful purpose and within the meaning of Article 8. The objective falls within Article 8(2), both for the reason that it is for the protection of health and more generally because it is for the protection of the rights and freedoms of others. I accept the submission of Ms Grey on behalf of the General Medical Council that the public interest is fostered by the proper administration of such disciplinary proceedings.

He did sound a note of caution, however, that the records were not misused and that no more than was necessary for the prosecution would be disclosed. He said

In coming to my conclusion, I am also influenced by the fact that the inroads into patient confidentiality will be minimised by further measures to be taken. The use to be made of the data will be limited to the investigation of the 16 sets of records in issue. Steps will be taken to anonymise the details of the patients concerned at the stage of any subsequent hearing so that, in practice, there should be no adverse effect on any of the individuals concerned.

What if the patient refuses to consent?

Even in cases where the patient refuses to give consent, a court can and if necessarily will override that lack of consent, and order disclosure.

In TB, R (on the application of) v The Combined Court At Stafford [2006] EWHC 1645 (Admin) the court was faced with a request for disclosure of the medical records of a 15-year-old girl who was the main witness in a rape trial. The defence had requested her medical records in order to show that she had spent time in a mental institution, a fact which could have raised doubts as to her testimony. She did not consent to the disclosure of her records.

Ultimately, the court in TB said that the balancing exercise in cases where the patient had refused consent was the same is it is ordinarily, such that a court could only order disclosure if  this was proportionate, in accordance with the law and necessary. Clearly the privacy side of the balance would be marginally heavier in cases where there was no consent.

The court also recommended changes to the court procedure rules to ensure that patients who were in similar situations would be given adequate notice that disclosure of their records had been requested, so they could have time to make representations. The Court also made clear that in cases involving psychiatric records, confidentiality was even more important than ordinarily.

Privacy still intact, but with exceptions

The outcome of Mr Rimmer’s case was similar to the outcome in most such cases; the records of the patients were disclosed and probably would have been even if they did not consent to that disclosure.

Does this mean that the courts are riding roughshod over patients’ rights to confidentiality? In practice, this is not the case. The courts take very seriously the confidentiality of patients’ records, and the decision to disclose is never taken lightly, particularly in cases where the patient has not consented to disclosure.

Whilst records will not be disclosed or disclosed in full in all cases, it does seem perfectly reasonable that the efficient prosecutions of allegedly dodgy doctors and dentists will usually take precedence over the disclosure of their patients’ otherwise confidential medical records. This is in the interests of public protection and therefore well within the exceptions built into Article 8 of the European Convention.