Confidentiality – Disclosure – Medical records – Inquiry into human tissue analysis in UK nuclear facilities

Nicholas Lewis (claimant) v Secretary of State for Health (defendant) & Michael Redfern QC (interested party): QBD (Mr Justice Foskett): 18 September 2008.

The applicant medical practitioner (L) applied for the authority of the court to disclose the medical records of certain deceased patients to the Redfern Inquiry into human tissue analysis in UK nuclear facilities.

The inquiry was a confidential inquiry co-sponsored by the Secretary of State for Business, Enterprise and Regulatory Reform and the Secretary of State for Health. It was a response to the discovery that some individuals who had worked in the nuclear industry and who had died between 1962 and 1991 had had tissues removed for analysis. The analysis was to determine the presence, if any, of a radionuclide content of the organs. The circumstances in which those events had occurred, including whether the next-of-kin of those affected knew or were asked for their consent, was uncertain. The purpose of the inquiry was to find out what had happened and why.

L was a director and shareholder in the company that provided occupational health services to those who worked at the Atomic Weapons Establishment at Aldermaston, and was also the custodian of the occupational health records of former employees at Aldermaston. The inquiry had requested L to disclose documents and records. L was willing to accede to the request but was concerned that to do so might breach his own duty of confidentiality to the patients concerned and that of the doctors and medical personnel that they had consulted when alive. He was prepared to give disclosure with the court’s sanction.

The defendant secretary of state argued that sufficient authority had already been given by virtue of the approval of the secretary of state to a recommendation of the Patient Information Advisory Group, to the effect that confidential patient information of the kind involved should be made available to the inquiry, under the Health Service (Control of Patient Information) Regulations 2002 and section 251 of the National Health Service Act 2006. L submitted that it was not clear that the patient information was being processed for ‘medical purposes’, namely the ‘management of health... services’ within section 251(12) of the act, in the sense that it would be subject to ‘audit, monitoring and analysing of the provision made by the health service for patient care and treatment’ within the 2002 regulations.

Held: (1) It was arguable that the duty of confidentiality of a doctor towards a patient continued after the patient’s death. The inquiry would be looking into the question of post-death examinations of those who might not in life have given advance consent to any such examination taking place following death. To that extent, those affected would have had no expectation of confidentiality vis-a-vis the medical practitioners concerned. Equally, if the next-of-kin were similarly not asked for consent, they would have no expectation of confidentiality. However, that could not be an answer to the emergence of an obligation of confidence on the part of the medical practitioners who were responsible for the examination and the subsequent analysis of the tissues obtained. The kind of examination that appeared to have been conducted would certainly rank high in the league of intimacy and sensitivity, and the presumption had to be that the matter was sufficiently sensitive to require a high degree of confidentiality which would endure for many years after the death of the individual concerned.

(2) The relevant provisions of the 2006 act and 2002 regulations appeared to be concerned only with patient information generated within the NHS and therefore would not apply to confidential patient information generated outside the NHS, if there was any in the present case. The taking of tissues after death did not amount to ‘care and treatment’ and therefore the information obtained from that procedure was not being processed for a medical purpose prescribed by the regulations. Nor would the inquiry be engaged in the ‘audit, monitoring and analysing of the provision made by the health service’ for post-mortem analysis of tissues taken in the circumstances of the present case.

(3) The court would use its general powers to authorise disclosure of the material requested by the inquiry which L had available for disclosure. It was also appropriate to permit the onward disclosure of that material to other participants in the inquiry who could not assist the inquiry without the opportunity of considering and commenting on the disclosed material. That onward disclosure would have to be on strict terms as to confidentiality. The public interest in the disclosure of the material sought outweighed the public interest in maintaining the confidentiality of medical records.

Application granted.

Angus Moon QC (instructed by RadcliffesLeBrasseur) for the claimant; Jeremy Roussak (instructed by the in-house solicitor) for the defendant and interested party.