UK: The Key To Disclosure: Safeguarding Patient Confidentiality

Last Updated: 30 September 2001

The problem of how to deal with patients’ confidentiality in the context of legal proceedings is a common one and the recent case of A Health Authority v X and Others1 is a helpful decision for solicitors, GPs and Legal Liaison Managers at Trusts and Health Authorities alike.


An unnamed Health Authority applied for disclosure of medical records by the respondent GP (Dr X) and his partners in an NHS General Practice. The Health Authority wished to consider the extent of compliance by Dr X and his partners with their terms of service and accordingly sought disclosure of two categories of documents on grounds of public interest as follows:

  • Documents that had been produced to the court or generated forensically in the course of care proceedings heard last year by another judge of the Family Division (the individuals, mainly children, who were the subject of those proceedings, are or were patients of the practice). (‘List A documents’); and
  • The records of 17 named patients or former patients of the practice (‘List B documents’).

Dr X and his partners did not contest the application but sought the court’s guidance. They had attempted to obtain the appropriate consents from the patients, only two of whom did not consent. Dr X was concerned with the duty of confidentiality owed to his patients.


Mr Justice Munby, in his judgment in the High Court of Justice, Family Division on 10th May 2001, considered the question of the confidentiality of a patient’s medical records and the impact of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which protects respect for the patient’s private and family life.

The judge was referred to two decisions of the European Court of Human Rights. In the case of Z v Finland 2 , two of the applicant’s doctors were compelled to give evidence of her medical history, and subsequently her medical records were seized by the police. The applicant claimed that her rights under Article 8 had been breached. The court considered that the interference with the applicant’s private and family life had been subjected to important limitations and was accompanied by effective and adequate safeguards. The questioning had taken place in camera with an order that the court’s file, including transcripts of witness statements, be kept confidential for 10 years.

Furthermore, seizure and use of the applicant’s medical records was supported by relevant and sufficient reasons. The weight of those reasons was such as to override the applicant’s interest in the information in question not being communicated.

The European Court did uphold one of the applicant’s complaints, which was that the period of 10 years prescribed was not long enough, although the court accepted that it is for the state itself to choose that aspect of a safeguard. The court also upheld a complaint of the applicant that the publication of the information concerned gave rise to a violation of the applicant’s right to respect for her private and family life as guaranteed by Article 8.

The second case considered by Munby J was MS v Sweden 3 . There, the applicant complained that disclosure of her medical notes to her Social Security Office breached Article 8. In that case, the European Court held that there was a legitimate need to investigate her benefits claim, and the measure taken was not disproportionate to that aim. The applicant’s claim was rejected.

Munby J held in the present case that there was compelling public interest requiring the disclosure of the List A documents, provided that disclosure was on the express conditions that:

  • the documents were to remain confidential; and
  • not merely the Authority, but every other public body or other person to whom the documents may properly be transmitted, was subject to the obligation to take effective and adequate safeguards against abuse.

Disclosure of the List B documents could only be given if:

  • the documents were bona fide and reasonably required for the proper exercise of one of the Health Authority’s functions;
  • there was a compelling public interest in their disclosure satisfying the criteria of necessity and proportionality; and
  • there were efficient and adequate safeguards against abuse.

In this case the judge decided that there was a compelling interest requiring disclosure of the List B documents. Disclosure of those documents was ordered on the same express conditions as applied to the List A documents.

The safeguards to be applied would depend on the particular circumstances, but would typically be (following Z and MS):

  • the maintenance of the confidentiality of the documents themselves.
  • the minimum public disclosure of any information derived from the documents; and
  • the protection of the patients’ anonymity.


This case clarifies that the onus of establishing that disclosure is necessary and proportionate has shifted from the patient to the person seeking disclosure of medical records. In light of the judgment in MS v Sweden and now this decision in the High Court, it may be that the rule in Hipwood v Gloucester Health Authority 4 will have to be reconsidered.

In Hipwood the defendants applied for an order requiring the claimant’s medical practitioner to produce medical records to the defendant’s solicitors. The deputy district judge refused the application and the judge in the County Court dismissed the defendant’s appeal. The Court of Appeal held, however, that the defendants were entitled to have the claimant’s medical records produced not only to their medical advisors but also to their legal advisors, because those records were likely to be relevant to litigation issues.

Since that case it has become widely accepted that a claimant should disclose the entirety of his or her medical records provided they are relevant to forensic issues in question. It now seems that if a Health Authority is faced with a patient in personal injury proceedings who refers to Article 8 as a means of withholding disclosure, the Authority would be entitled to refer to MS as authority for the proposition that protecting the public purse against unmeritorious claims is a legitimate interference with the right of a patient to the confidentiality of his medical records.

Those representing the claimant may counter-argue that in civil litigation the claimant does not have adequate safeguards in the way that the applicant in MS did. However, Munby J has indicated that the particular circumstances of each case will dictate the safeguards to be applied.

In summary, the court in A Health Authority v X and Others was clearly concerned, not only that any interference with Article 8 is justified by an overriding public interest in disclosure, but also that there are effective and adequate safeguards against abuse of information contained in otherwise confidential records. The order made by the judge was a detailed implementation of the safeguards to which he had referred. The decision will be a useful guide in the handling of future claims where patient confidentiality is in issue.


  1. ILR 25/06/2001
  2. (1997) 25 EHRR 371
  3. (1997) 28 EHRR 313
  4. (1995) 6 Med LR 187

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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