The right to privacy and medical records – Seonaid Stevenson
18 February 2016
WF, Petitioner  CSOH 27 – read judgment
The Outer House of the Court of Session has ruled that the right to privacy and medical confidentiality under Article 8 of the Convention entitles complainers to be heard and have legal representation before any orders are made for recovery of their medical records.
Factual circumstances and legal background
The petitioner, (‘WF’) was a complainer in domestic abuse proceedings against the accused. The accused sought to recover all medical, psychiatric and psychological records relating to WF from 2007 to 2014. WF sought legal aid to allow her to be represented at the hearing concerning the recovery of these documents, arguing that her rights under Article 8 of the Convention entitled her to participate. The application to the Scottish Legal Aid Board was refused as there was no provision in the relevant legislation or regulations for legal aid to be granted for such proceedings. A further application was then made to the Scottish Ministers, under s.4(2)(c) of the Legal Aid (Scotland) Act 1986, which allows legal aid to be granted in circumstances not covered by the rules. This application was also refused on the grounds that WF did not have the right to appear or be represented at the relevant hearing. The key issue which came before the Sheriff was therefore whether Article 8 gave the complainer the right to appear and be represented at the hearing concerning disclosure of her medical records.
The right to be heard
Lord Glennie was untroubled by the question as to whether the complainer’s Article 8 rights were engaged, holding that Article 8 rights ‘are engaged whenever there is an application by the accused for records of this kind.’ (para.32) He noted that, while the question of whether the complainer had the right to appear and oppose the application for recovery of her records was unanswered in Scotland, it had in fact been addressed in England and Wales in the case of R(B) v Crown Court at Stafford  1 WLR 1524.
In Stafford a defendant, who was charged with sexually abusing a 14-year-old girl, successfully recovered her medical records on the grounds that they were pertinent to her credibility. The young girl had attended court, unrepresented, and reluctantly agreed to the disclosure in order to avoid delays to the trial. In subsequent judicial review proceedings, it was held that Article 8 required that she ought to have been notified of the application and have had the opportunity to make representations to the court. It was held that the decision making process
must be such as to secure that the views of those whose rights are in issue are made known and duly taken account of. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the person whose rights are in issue has been involved in the decision-making process, seen as whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and privacy and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8. [para 23]
In my judgment, procedural fairness in the light of article 8 undoubtedly required in the present case that B should have been given notice of the application for witness summons, and given the opportunity to make representations before the order was made. [para 25]
Lord Glennie dismissed the argument for the Scottish Ministers that Stafford turned on its particular facts. (paras. 35 to 36) Equally, he rejected the argument, premised on Z v Finland (1997) 25 EHRR 371, that Article 8 did not necessarily involve the person whose medical history was to be disclosed being afforded an opportunity of being heard directly by the court making the order. He instead noted that Z v Finland was unusual in that the court had been made aware of the applicant’s views through other mediums, such as through oral testimony of her medical advisors and through a letter she authored being read aloud in court. In light of this, Lord Glennie held that Z v Finland was not authority for the proposition that giving the complainer a right to be heard is generally unnecessary. (paras. 37 to 38) Instead he held, drawing on the reasoning of Stafford, that ‘intimation to the complainer and the provision of an opportunity to be heard before an order for recovery of her medical records is made is required if there is not to be a breach of the complainer’s Article 8 rights’ (para 28).
Emphasising the practical importance of such measures, he noted that it is only when the complainer is given the opportunity to be heard that the court then has the necessary information before it to carry out the required balancing of the accused’s interest in obtaining the medical records against the complainer’s Article 8 rights. Without the complainer having an opportunity to be heard, the court would simply have to conduct an artificial balancing exercise with no knowledge of the particular sensitivities of the case. (para.39)
Lord Glennie therefore concluded that
any person whose Article 8 rights may be infringed by an order for recovery of medical records and other sensitive documents must have the application for recovery intimated to them and must be given the opportunity to be heard in opposition to the application before an order is made or, at least, before the documents are handed over to the party seeking them. (para 45)
He further held that, if the complainer has the right to be heard, accordingly they are entitled to legal representation. (para 46).
On the point of legal aid, Lord Glennie held that as the letter refusing the complainer’s application for legal aid hinged on whether the complainer had the right to be heard and represented, it was the role of the court to simply reduce that decision and for the Ministers to reconsider the legal aid application on the correct legal basis. However, he did note that
the decision must obviously take into account not only the individual’s age and mental capacity but also his vulnerability and continuing distress insofar as this too may affect his or her ability to represent himself. If, as the material presented to Scottish Ministers appears to show, the complainer here is vulnerable and terrified by the whole court process so that she cannot be expected to speak up for herself in court and present her arguments coherently and forcefully, that will be a strong reason for the application for legal aid to be favourably regarded. (para. 51)
It would therefore appear that, particularly in cases involving domestic abuse or sexual crimes, vulnerable complainers will in the future have a strong claim for legal aid.
Reception and analysis
The decision in WF is already being hailed as a legal landmark in Scotland. Rape Crisis Scotland, who were Interveners in the case, emphasised throughout the case that the prospect of disclosure of medical records can deter complainers from reporting incidents to the police. Having the opportunity to oppose such disclosure may encourage more victims to come forward. The judgment delicately balances the complainer’s right to be heard with the accused’s interest in obtaining medical records and allows for all parties to be effectively heard. Through the provision of representation and legal aid for such proceedings, the Scottish Courts are now better able to balance these competing interests and have been brought in line with proceedings south of the border.
However, the judgment is also deeply significant on a wider level. In a climate of legal aid cuts and anti-human rights rhetoric, Lord Glennie’s judgment is a robust defence of the individual’s right to privacy and access to legal representation. It is yet unknown whether the Scottish Government will introduce new legal aid regulations to deal with the issues raised in the present case. However, what is clear is that the impact of WF, Petitioner may potentially be very far-reaching.
Seonaid Stevenson is studying for her Diploma in Professional Legal Practice at the University of Glasgow