Ipsofactoj.com: International Cases [2002] Part 13 Case 13 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Stevens

- vs -

Plymouth City Council

LORD JUSTICE KENNEDY

LORD JUSTICE CLARKE

LADY JUSTICE HALE

26 MARCH 2002


Judgment

Lady Justice Hale

  1. This is an appeal from an order made by Maurice Kay J on September 2001 in the Administrative Court. He dismissed the appellant motherís application for judicial review of the local social services authorityís decision to refuse her access to certain information about her adult son, C. C is in the authorityís guardianship under the Mental Health Act 1983 and lacks the capacity to make such decisions for himself. At issue is how Cís interest in preserving the confidentiality of personal information about himself is to be reconciled with his motherís interest, as his nearest relative, in having access to enough information about him to exercise her statutory functions under the Mental Health Act. This in turn raises issues about her rights under Article 6 of the European Convention on Human Rights and about the rights of them both under Article 8 of the Convention. It has not been suggested that the local authority have any independent rights as Cís guardian.

    THE FACTS

  2. C was born in June 1974 and is now 27 years old. His father died when he was very young. Thereafter his mother brought him up alone. He had learning and behavioural difficulties and attended special schools. Psychiatrists have differed in their diagnoses of his condition. In January 1993, for example, after a crisis hospital admission when C was 18, his consultant, Dr Morris, considered that C probably had Ďsoft neurology and a degree of minimal brain damage, which has produced a patchy set of learning difficulties with a behavioural componentí. He noted that there were aspects of Cís behaviour which had Ďan autistic like qualityí although C did not demonstrate anything like full autistic syndrome. In June 1994, on the other hand, another consultant psychiatrist, Dr James, concluded that C did not have autism or a related syndrome; rather his problem was over-sensitivity to criticism and the feelings of others. The recorded diagnoses were avoidant personality disorder and learning disability.

  3. His mother has always wanted to look after him at home with appropriate support from the health and social services, including periods of respite care and appropriate treatment for his learning and behavioural difficulties. His behaviour presented problems, both for her and for their neighbours, when he lived at home but these were less noticeable in other settings. As C got older, the professional view began to develop that it would be better if he were cared for in a stable residential environment away from home.

  4. On 19 February 1998, a case conference was convened under the Ďadults at riskí procedure, to decide whether C should be so classified and if so to decide upon a care plan. The mother and a great many professionals, including a vocal local police officer, attended. The conclusion was to pursue guardianship if this was recommended in a report expected from Dr Morris. Dr Morris reported that C would Ďmeet all the requirements for guardianship, namely the presence of a mental disorder and general mental impairment in particular, would be at risk of harm to himself through neglect and vulnerability to assaultative behaviour from members of the public who might take great offence [at] Cís public behaviour. His direct risk to others through violence is less clear.í His view was that, because C did not behave in the same way in other places as he did at home, Ďhe would be better placed in a small caring environment separate from his motherís home. Due to the complex nature of the relationship between mother and son, this may present certain difficulties. Social contact between C and his mother will of course continue as part of a package of care.í

  5. Soon after this, an approved social worker, Ms Liljestrom-Wood, discussed the possibility of guardianship with the mother. This was followed on 5 March 1998 by a letter from Ms Wood and Mrs. Treble, a community nurse, outlining three options:

    • first that C entered residential care voluntarily;

    • second that social services applied for guardianship without the mother objecting; and

    • third that if she and C disagreed, social services could apply to court for her to be displaced as nearest relative and then go ahead with the guardianship.

  6. Cís mother asked for time to consult with Mencap and the CAB before deciding whether to agree. Then in April C was admitted to hospital for assessment under section 2 of the Mental Health Act. Thereafter a short term residential placement was arranged while discussions about guardianship continued. The mother was still reluctant to agree until she knew exactly what would be done under it. An application was therefore made to the county court to replace her as nearest relative. The mother was granted legal aid. On 6 July 1998 she signed a form stating that she did not object to the guardianship. This was forwarded to the local authority by her solicitors on 10 July with a letter making it clear that it was on the understanding that the application to replace her would be withdrawn. Ms Wood saw C on 13 July 1998 and made the guardianship application that same day. It was accepted by the local social services authority the next day. The application to the court was dismissed with consent on 17 July.

  7. The guardianship was first renewed on 14 January 1999 after a meeting on 11 January which the mother was unable to attend. It was renewed again in July 1999 and again in July 2000 (and has again been renewed in July 2001 during the currency of these proceedings). Cís mother had written on 8 July 2000 objecting to the renewal and enclosing a letter, dated 27 November 1999 but not then sent, which begins ĎI am writing to you to end the Guardianship which you have on my soní.

  8. Cís mother has attended care planning meetings and received minutes of those. However, she has been shown none of the documentation upon which the guardianship or its renewal was based. She had only very brief minutes of the meeting on 11 January 1999 which led to the first renewal. She was at that time pursuing a formal complaint against the social services department in which she had asked for access to Cís files. This was refused on 23 March 1999. She later made a complaint to the local government ombudsman but in January 2000 he decided not to pursue an investigation. On 18 March 2000 she wrote to the local authority again asking to see Cís files. This letter was countersigned by C himself. On 10 April 2000 the complaints officer replied that they did not regard Cís consent as valid as he did not have the mental capacity to understand what was being asked of him or its implications; since C could not consent to disclosure ĎI am afraid it is not legally possible for us to allow you to see themí.

  9. The motherís present solicitors then wrote on her behalf on 7 July 2000. They asked for access, first, to the recommendations and reports leading to the guardianship and its renewal, and second, to Cís social services files. Ms Lawrance-Owen of the authorityís legal practice replied on 28 July 2000. She was sympathetic:

    I would like to be able to supply you with copies of the written recommendations etc to which you refer as I believe that these will confirm that everything which has been done is in Cís best interests. However, I can find no authority for me to disclose this information to Mrs. S or to you as her solicitors. I find it illogical, if not ludicrous, that the nearest relative should not be entitled automatically to this information but without authority I do not see how it can be disclosed.

    As to the files, she agreed that if C did not have the capacity to consent, the common law rules on confidentiality would apply but she would have to seek further instructions as to whether disclosure was in Cís best interests.

  10. The motherís solicitors wrote again on 16 August 2000 renewing their request and asking what steps the authority had taken to establish whether or not C had capacity. They pointed out that much emphasis had been placed upon Cís wishes about where he should live while denying his capacity to consent to disclosure. Eventually, Ms Lawrance-Owen replied on 6 October 2000. She had consulted Cís doctor, who did not believe that he had capacity to give informed consent to disclosure of his files (the doctor later confirmed this opinion, in a letter dated 4 April 2001). Interestingly, this follows an account of a visit to a solicitor by C and his advocate after which ĎCís decision was that he did not want legal representation at the current timeí. However, she agreed that

    the duty of confidentiality is not absolute and that the public interest that confidences should be preserved may be outweighed by some other public interest favouring disclosureí; but Ďmy reading of the case law leads me to conclude that disclosure should not be made without very good reasons. I do not believe that such reasons exist in this case .... This is not a case where the parent does not know what the issues are or why decisions have been made. It is not a case where information is needed in order to evaluate and if necessary challenge those decisions. Mrs. S has been fully involved in the care planning process for C and is aware of all the professional opinions, the reasons for them and the reasons for the decisions which have been made. The fact that Mrs. S does not like those reasons is not, in my opinion, sufficient to out-weigh this Authorityís common law obligation not to disclose confidential information.

    This letter also warned that if Mrs. S took steps to end the guardianship,

    I have no doubt that I will be instructed to issue a further application for an Order under Section 29 of the Mental Health Act 1983 displacing Mrs. S as nearest relative.

  11. The motherís solicitors wrote again on 16 October 2000 making the further point that the motherís Ďpurpose in seeking disclosure is to act in Cís best interests and to secure for him the right to family life which she feels has been taken away from C and herself ....í The response on 3 November 2000 did not accept that the case raised fundamental questions about the right to family life and Cís vital interests. It repeated the reasons given on 6 October for refusing disclosure.

  12. The application for judicial review of this decision was lodged on 5 December 2000. The Official Solicitor was invited to act for C. An independent psychiatrist, Dr Mlele, reported on 10 July 2001 that C lacks capacity either to consent to disclosure of his files or to apply to a Mental Health Review Tribunal on his own behalf. The Official Solicitor therefore acts for C but has not otherwise visited him or investigated his wishes and feelings or what might be in his best interests either in these proceedings or generally. Shortly before the hearing, the motherís solicitors wrote once more, clarifying that the request was specifically aimed at finding out about the key decisions made by the authority which led to the guardianship and its renewal and the evidence on which these were based.

  13. The hearing took place in July 2001 and judgment was reserved until 7 September 2001. Permission to appeal was granted on 18 October 2001. Negotiations continued with a view to achieving some disclosure. The motherís solicitors have now identified two experts, a consultant psychiatrist and an independent social worker, to advise her on whether to exercise her power as nearest relative to discharge C from guardianship. The experts have identified the records that they would need to see in order to do this. Their lists are very similar but fall short of requiring access to the complete file. The psychiatrist, Dr Campbell, needs to see Cís current mental health records since admission to his current home; previous mental health records since 1992 when he first became involved with the Community Services Challenging Behaviour Service (day to day records would not be as important as summaries and reports, including reports by psychiatrists other than Dr Morris); psychological assessments; approved social worker reports from before the guardianship and to date; minutes of case conferences and professional network meetings; summaries from staff and his keyworker at his present home. The independent social worker, Mr. OíMeara, needs to see the approved social workerís report before the guardianship, together with the psychiatristís recommendation then; any documents relating to successive renewals, including case conference minutes; and any psychologistsí assessments.

  14. The authority have now indicated their willingness to allow the experts such access as they require. At the outset of this hearing they also indicated that the experts might decide what information to disclose to the mother in the course of giving her their advice. They remained unwilling to disclose the information directly to the mother or her solicitors. The mother and her solicitors continue to seek direct access to the information needed to advise her. There has thus been very considerable movement since the judgeís decision, both in the context of the motherís request and in the position adopted by the local authority. His decision, and the reasons for it, are therefore of little relevance to the issue which this court has now to resolve.

    GUARDIANSHIP AND THE POWERS OF THE NEAREST RELATIVE UNDER THE MENTAL HEALTH ACT 1983

  15. A person may be received into guardianship under section 7 of the Mental Health Act 1983 on the grounds prescribed in section 7(2), namely that:

    (a)

    he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and

    (b)

    it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.

  16. A guardianship application may be made either by an approved social worker or by the patientís nearest relative (1983 Act, s 11(1)). Forms 18 or 17 respectively are prescribed for this purpose by the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983. An approved social worker must if practicable consult the nearest relative and cannot make an application if the nearest relative objects (s 11(4)); but the social worker may then apply to the county court for the nearest relative to be replaced (see para 23 below).

  17. A guardianship application must be founded on the written recommendations of two doctors, one an approved specialist (see s 12(2) and (7)); these must include the prescribed particulars of the grounds for their opinion that the patient is suffering from the required form of mental disorder and state their reasons for their opinion that guardianship is necessary (s 7(3)). Forms 19 and 20 require them to give a clinical description of the patientís mental condition and to explain why he cannot appropriately be cared for without powers of guardianship.

  18. The application is addressed to the local social services authority. The proposed guardian may be either the authority or any other person (including the applicant); but in either event the application only takes effect if accepted by the local authority (s 7(5)). The effect is to confer upon the guardian (see s 8(1)):

    (a)

    the power to require the patient to reside at a place specified by the authority or person named as guardian;

    (b)

    the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;

    (c)

    the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.

    Under the predecessor to the 1983 Act, the Mental Health Act 1959, guardianship conferred Ďall such powers as would be exercisable by them or him in relation to the patient if they or he were the father of the patient and the patient were under the age of fourteen yearsí (s 34(1)). The 1983 Act represented a deliberate restriction to those powers essential to achieve the purpose of the guardianship. Giving or refusing consent to the disclosure of information is not among them.

  19. Guardianship lasts in the first instance for six months (s 20(1)). It may then be renewed for a further six months and then for periods of one year at a time (s 20(2)). The responsible medical officer (of a patient in local authority guardianship) must examine the patient within the two months before the guardianship is due to expire. If it appears to him that the conditions for continuing the guardianship (set out in s 20(7) and to the same effect as those in s 7(2)) are satisfied, he must make a report to the local authority to that effect on the prescribed form (s 20(6)). Part I of Form 31 is prescribed for this purpose and the renewal must be endorsed by the local authority in Part II (1983 Regs, reg 10(2) and (3)). The guardianship is then automatically renewed (s 20(8)) unless the authority decide to discharge the patient (s 20(6)).

  20. However, the patient can be discharged from guardianship at any time, by order in writing, by the responsible medical officer, the responsible local social services authority, or the nearest relative (s 23(2)). The order must be served on the responsible local social services authority and may, but need not, be in Form 35 (1983 Regs, reg 15(2)). There is no power to prevent the nearest relative discharging the patient. However, an application may be made to the county court for the nearest relative to be replaced (see para 23 below). The patient may also apply to a mental health review tribunal for his discharge once within each period of guardianship (s 66(1)(c) and (f) and (2)(c) and (f)). The nearest relative has no statutory right to apply to a tribunal on behalf of the patient but if displaced can apply on her own behalf once within every 12 month period after a court order replacing her (ss 29(6) and 66(1)(h) and (ii) and (2)(g)).

  21. Thus it will be seen that the 1983 Act accords the nearest relative an important role, not only in securing a patientís reception into guardianship but also in bringing that guardianship to an end. To help her in this, section 24 provides as follows:

    (1)

    For the purpose of advising as to the exercise by the nearest relative of a patient who is .... subject to guardianship under this Part of this Act of any power to order his discharge, any registered medical practitioner authorised by or on behalf of the nearest relative of the patient may, at any reasonable time, visit the patient and examine him in private.

    (2)

    Any registered medical practitioner authorised for the purposes of subsection (1) above to visit and examine a patient may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or to any after-care services provided for the patient under section 117 below.

  22. Any sensible nearest relative who was unhappy about the decisions made by the professionals would wish to seek such advice rather than rush to discharge the patient, thus placing at possible risk not only the patientís welfare but also her own status as nearest relative. Funding for such independent advice may, however, be difficult to secure unless there are relevant legal proceedings on foot. Further, in the context of guardianship, there are two obvious gaps in section 24.

    • First, it provides only for a doctor to visit and examine records, whereas in guardianship the social work judgments about the care best suited to the patientís needs may be just as, if not more, important than the medical opinions.

    • Second, it provides only for hospital and statutory after-care records to be seen. As it happens, C was admitted to hospital for a short time but under section 2 (for assessment) rather than section 3 (for treatment), so that his subsequent care does not strictly fall within section 117.

  23. The Act also acknowledges that the nearest relative may not always know what is best for the patient or even have the patientís best interests at heart. Unlike the patient, whose liberty may be curtailed simply by the professionalsí following the statutory procedure outlined above, the nearest relativeís powers can only be curtailed by a court order. The county court has power to replace the nearest relative on the application of, among others, an approved social worker (s 29(1) and (2)) on any of four grounds (s 29(3)). Two are relevant here:

    (c)

    that the nearest relative of the patient unreasonably objects to the making of .... a guardianship application in respect of the patient; or

    (d)

    that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from .... guardianship under this Part of this Act, or is likely to do so.

    If the application is made by an approved social worker, the person appointed will be either the local social services authority or some other suitable and willing person (s 29(1) and (2)). The order lapses if the guardianship ends (s 30(4) and may be discharged on the application of the person appointed; but there is no provision for a nearest relative who has been displaced under ground (c) or (d) to apply for the order to be discharged (see s 30(1)).

  24. Should the matter get to court under section 29, the procedure is still governed by the old County Court Rules, Order 49, rule 12. Rule 12(3) provides that the nearest relative must, and anyone else other than the patient may, be made a respondent. Rule 12(6) allows the judge to interview the patient either in the presence of or separately from the parties and either at court or elsewhere (or to direct the district judge to do so and report back in writing). Rule 12(5) provides that the court is to sit in private unless otherwise ordered. Most relevant for our purposes, however, is rule 12(4):

    On the hearing of the application the court may accept as evidence of the facts stated therein any report made by a medical practitioner and any report made in the course of his official duties by -

    (a)

    a probation officer; or

    (b)

    an officer of a local authority or of a voluntary organisation exercising statutory functions on behalf of a local authority; or

    (c)

    an officer of a hospital authority,

    provided that the respondent shall be told the substance of any part of the report bearing on his fitness or conduct which the judge considers to be material for the fair determination of the application.

  25. These rules date back to the implementation of the Mental Health Act 1959, before the expansion in the admissibility of hearsay evidence in the Civil Evidence Acts 1968, 1972 and 1995. Their vires are now contained in section 31 of the 1983 Act (which is in identical terms to s 55 of the 1959 Act):

    County court rules which relate to applications authorised by this Part of this Act to be made to a county court may make provision -

    (a)

    for the hearing and determination of such applications otherwise than in open court;

    (b)

    for the admission on the hearing of such applications of evidence of such descriptions as may be specified in the rules notwithstanding anything to the contrary in any enactment or rule of law relating to the admissibility of evidence;

    (c)

    for the visiting and interviewing of patients in private by or under the directions of the court.

    This may be contrasted with the vires for the Mental Health Review Tribunal Rules 1983 in section 78(2) which, among other things, specifically allows provision to be made

    (h)

    for making available to any applicant, and to any patient in respect of whom an application is made to a tribunal, copies of any documents obtained by or furnished to the tribunal in connection with the application, and a statement of the substance of any oral information so obtained or furnished except where the tribunal considers it undesirable in the interests of the patient or for other special reasons.

  26. The nearest relative is identified by applying the hierarchy laid down in s 26 of the 1983 Act, irrespective of how close their actual relationship is with the patient, although if the patient ordinarily resides with or is cared for by a particular relative, that relative is promoted to the top of the list (see s 26(4)). The statutory nearest relative may however delegate the exercise of her powers to another person (see 1983 Regs, reg 14). There is at present no provision for a patient to apply for someone else to be appointed his nearest relative (but the Government is committed to this following the friendly settlement reached in JT v United Kingdom, Application No 26494/95, 30 March 2000.

    THE DATA PROTECTION ACT 1998

  27. Although it featured in the argument before Maurice Kay J and before us, it is not suggested that the Data Protection Act 1998 provides much assistance in this case. All of the material requested is Ďpersonal dataí within the meaning of the Act and so much of it as relates to Cís Ďphysical or mental health or conditioní is Ďsensitive personal dataí within the meaning of section 2(e). But the processing of even sensitive personal data is permitted where it is necessary in order to protect the vital interests of the data subject or another person in a case where consent cannot be given by or on behalf of the data subject (Sched 3, para 3); or for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) or for the purpose of obtaining legal advice, or where it is otherwise necessary for the purposes of establishing, exercising or defending legal rights (para 6); or where it is necessary for the administration of justice, or for the exercise of any functions conferred on any person by or under an enactment (para 7). It is common ground, therefore, that the 1998 Act does not prevent the local authority disclosing this information. Nor, however, does it require the authority to do so.

    THE COMMON LAW AND THE HUMAN RIGHTS 1998

  28. The answer to the dilemma in this case must therefore turn upon the principles of the common law and the obligations of the local authority and the court under the Human Rights Act 1998. The respective positions of the parties can be simply stated.

  29. Mr. Alan Maclean, on behalf of the authority, starts from the proposition that this is confidential information which should not be disclosed without a very good reason. However, the authority are now content for the mother to see anything which her experts consider that she should see. They justify this by extension of the purpose underlying section 24(1) and (2) of the 1983 Act (see para 21 above). It was only after the hearing before the judge that they were asked to consider disclosure to experts instructed to advise her.

  30. Mr. Murray Hunt, on behalf of the mother, starts from the proposition that the relevant interests should be balanced against one another. However, while Cís interest in preserving confidentiality is purely theoretical given his lack of capacity, the mother is entitled to the information she requires in order to seek legal and professional advice upon the exercise of her functions as nearest relative. This is part and parcel of her right of access to a court both at common law and under Article 6 of the European Convention because the local authority have made it clear that they will apply to the county court should she seek to exercise her power to discharge her son from guardianship against their wishes. Mr. Murray Hunt acknowledges that this right must be qualified where there is a risk that disclosure will be harmful or damaging to Cís health or welfare. There is no evidence of that in this case, nor have the local authority ever suggested that there is any such risk.

  31. Miss Weereratne, on behalf of the Official Solicitor who acts for C, is mainly concerned that this Court should not endorse an absolute right of any nearest relative to the disclosure of any information about a patient for which she asks. She drew a distinction between the documentation necessary to support the guardianship application and its renewal and the wider disclosure of social services files. She is, however, content with the disclosure to experts offered by the local authority. She was also content for the experts to disclose this material to the mother and her legal advisers.

  32. The simple answer to this case is that, both at common law and under the Human Rights Act, a balance must be struck between the public and private interests in maintaining the confidentiality of this information and the public and private interests in permitting, indeed requiring, its disclosure for certain purposes. There is no evidence from the correspondence leading up to the first instance hearing that the local authority had made any attempt to strike that balance. They began from the proposition that they had no power to disclose the information at all. They then modified this to Ďno power without a very good reasoní. But in seeking for a reason they looked at the nature of the underlying disagreement between the authority and the mother about where C was to live and not at the legal interests which might support the disclosure of the information. The local authority no longer seek to justify that stance. The more difficult question is how that balance is to be struck in the light of the disclosure which they now concede.

    DISCUSSION

  33. The common law obligation to keep a confidence is conceptually quite different from the statutory obligation to process data in accordance with the data protection principles and from the right to respect for private life enshrined in Article 8(1) of the European Convention on Human Rights, although there are overlaps. The local authority have assumed that all the material in question here is covered by a common law obligation of confidence. They have not sought to claim any form of public interest immunity for it. Some of the information will indeed be confidential to C: the most obvious examples are the medical reports and recommendations but social workers and other professionals also owe him a duty to respect his confidences. Some of the information may be confidential to other people: opinions shared at professionalsí meetings could fall within this category. But some of it may not be confidential at all: straightforward descriptions of everyday life are not normally thought confidential. For the sake of the argument, however, we have been content to assume that most if not all of the information sought is covered by a common law obligation of confidence.

  34. Even where information is covered by an obligation of confidence, the breadth of that obligation depends upon the circumstances: see W v Edgell [1990] Ch 359, per Bingham LJ at 419c. If the information has been brought into existence for certain authorised purposes, then it can be disclosed for those purposes. Thus, for example, the medical reports and recommendations have to be disclosed to the applicant approved social worker and to the local authority in order for them to fulfil their statutory functions. It would scarcely be a large step to include the nearest relative within that loop.

  35. Furthermore, as Bingham LJ also observed, at 419e,

    The decided cases very clearly establish: (1) that the law recognises an important public interest in maintaining professional duties of confidence; but (2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure.

    The first example he gave of such an interest was the public interest in the administration of justice. Professional confidence does not generally confer a privilege against disclosure in legal proceedings. It has quite frequently to be breached in the course of litigation. Hence the basic documents upon which the guardianship is founded, the application, the medical recommendations and the renewal reports should be placed before a court hearing an application to displace the nearest relative. They would also have to be disclosed to a mental health review tribunal hearing an application made either by C or by his mother should she be displaced as nearest relative.

  36. Much has been made of the limited obligation of disclosure contained in CCR, Ord 49, rule 12(4) (see para 24 above). In B(A) v B(L) (Mental Health Patient) [1980] 1 WLR 116, this Court held it sufficient to comply with that rule if medical reports were shown to the solicitor acting for the nearest relative. However, rule 12(4) clearly imposes a minimum obligation. By doing so, it may imply that the court has power to withhold other relevant information from a party to the proceedings. But it certainly does not require the court to do so. The court has to comply with the rules of natural justice, which normally require that anything relevant to the courtís decision be seen by both sides to the dispute. As Lord Mustill put it in Re D (Adoption Reports: Confidentiality) [1996] AC 593, at 615:

    It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by a court when reaching a decision adverse to that party.

    That principle may be qualified if there are competing interests sufficient to outweigh it. In particular, where the proceedings concern the welfare of a child or a patient, it may have to yield to the need to protect that person from harm or the risk of harm. However, that person also has an interest in the fairness of the trial and in having the material properly tested in court.

  37. Those basic principles of the common law are reinforced by Articles 6 and 8 of the European Convention on Human Rights. Although the right to a fair trial in Article 6 is absolute, the content of that right is not. As Lord Bingham put it in Brown v Stott [2001] 2 WLR 817, at 836:

    The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of those rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.

    Hence the right to see all the documents in a case may be outweighed by other considerations, but there must be a clear and proper public objective and the limitation must be proportionate to that objective. There are proper public objectives other than the protection of a child or patient from harm (see the discussion by Munby J in Re B (Disclosure to Other Parties), 19 July 2001). But no such objective has been put forward in this case, nor are some of the more obvious ones, such as national security or the protection of informants, relevant. In general, therefore, one would expect disclosure of all the information put before the court in proceedings under section 29 for the purpose of establishing that the nearest relative Ďhas exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from guardianship or is likely to do soí, unless there was a demonstrable risk of harm to the patient or others in so doing.

  38. In principle, the approach of a court in a section 29 application should be no less open than that of a mental health review tribunal, which is directly concerned with whether or not a mental patient should continue to be subject to compulsory powers under the Mental Health Act. The Mental Health Review Tribunal Rules 1983 do permit non-disclosure of documents to the applicant or patient, but only Ďon the ground that its disclosure would adversely affect the health or welfare of the patient or othersí (rules 6(4) and 12(2)), and if the applicant or patient is represented by a barrister, solicitor, doctor or another person suitable by virtue of experience or professional qualification, the document must be disclosed to him (rule 12(3)). It would be strange indeed if the practice governing disclosure in the county court were more restrictive than the practice governing disclosure in mental health review tribunals. There is nothing in the vires for their respective rules (see para 25 above) to suggest that it should or could be.

  39. It is, of course, normally for the parties (in this case, the local authority) to decide what evidence or information to put before the court or tribunal. Applications under section 29 have to be dealt with quickly (although there is power to make interim orders); resort to the normal process of disclosure would usually be impracticable. But where the interests of children or patients are concerned, the courts have traditionally taken a more inquisitorial approach. They expect to be fully and properly informed and will not necessarily accept that a party has the right to pick and choose what information to reveal. The information sought by the experts instructed by the mother (see para 13 above) is exactly the sort of information which a court might properly expect to be put before it for the purpose of determining this dispute.

  40. What then should be the authorityís approach at this stage, before the matter has got to court? Clearly, they are right to have gone as far as they have now gone. There is an obvious public and private interest in the mother having access to the best possible expert advice before she decides whether or not to exercise her power of discharge. There are gaps in her statutory entitlement under section 24(1) and (2), particularly in the case of guardianship, but it is in the public interest that those should be filled by the disclosure now offered. The professionals will be subject to the same duties of confidence as everyone else who has already had access to this information. Their advice will assist the mother in carrying out her statutory functions, but it will also assist C in enabling decisions that he is unable to make for himself to be properly scrutinised.

  41. But should the mother and her lawyers also have access to the information sought by her experts? The case put by Mr. Murray Hunt on her behalf relied on the right of access to a court, and the right of access to legal advice in order to exercise that right, contained in Article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights, in particular Golder v United Kingdom (1975) 1 EHRR 524. The mother has already been told that, if she exercises her right to discharge C, an application will be made to displace her. The two are part of the same process and it is unrealistic to regard them separately. In effect, the mother is placed in a position where she is likely to have to justify her decision before a court. Proper access to the court therefore requires that she have proper access to legal advice before she sets that process in motion. Proper access to legal advice requires that she have access to the information which will be relevant to the courtís decision.

  42. Two arguments are put against this on behalf of the authority.

    • First, the proceedings before the county court are not Ďthe determination of her civil rights and obligationsí for the purpose of Article 6(1). Her status as nearest relative is given her by statute and not by virtue of her actual relationship with the patient. Her role as nearest relative is a public law role of participating in the procedures for the imposition of compulsory powers under the 1983 Act.

    • Second, there is not yet, and may never be, any question of court proceedings. They will only arise if and when she decides to discharge C from guardianship, and even then it will depend upon the professional judgments available to her and to the local authority at the time.

  43. As to the first, it is plain that the common law also recognises a right of access to a court and access to legal advice for the purpose of exercising that right: see e.g. Raymond v Honey [1983] 1 AC 1; R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198; and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 WLR 1622. The common law will protect the exercise of those rights irrespective of whether or not they would be classed as civil rights for the purpose of Article 6 (see R v Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443. In any event, Article 6 does not prescribe or presume any particular content for civil rights, which is a matter for domestic law. Although the identity of the nearest relative is prescribed by statute, the object of the statute is to identify the person with the closest family relationship to the patient. The powers are given to the nearest relative partly for the protection of the patient and partly for the protection of the family which may otherwise face intolerable burdens in looking after him. Disputes between the state and the family about family relationships have long been regarded as falling within the ambit of Article 6 as well as Article 8: see, e.g., W v United Kingdom (1977) 10 EHRR 29.

  44. Furthermore, the dispute between the mother and the local authority about where C was to live might well (and if Dr Morris had not recommended guardianship could only) have been resolved by way of a claim for a declaration in the Family Division as to what was in Cís best interests (see, e.g., Re S (Hospital Patient: Courtís Jurisdiction [1995] Fam 27). That would undoubtedly have fallen within Article 6. It is artificial to draw a distinction here.

  45. In the same way, it is artificial to draw a distinction between access to legal advice upon discharge and access to legal advice upon a displacement application. The two go hand in hand. In reality, the nearest relative cannot exercise her power of discharge without regard to the very real risk of displacement proceedings if she does so against the wishes of the local authority. She needs advice on them both together. The curious structure of these provisions means that she cannot lose her dispute with the local authority about whether or not to discharge C without also losing her status as his nearest relative and the statute gives her no power to seek reinstatement. It is also very much in Cís interests for her to have that advice at the earlier stage. If she is advised not to discharge him, then the litigation may be avoided altogether. If she is advised to do so, then there must at least be a case which is worth putting before a court.

  46. These considerations would arise at common law irrespective of the Human Rights Act. The Human Rights Act, however, introduces a further dimension in Article 8. Both the mother and C have a right to respect for their family life. Not only is the mother Cís closest relative in fact as well as in law, they lived together all his life until shortly before he was placed under guardianship. They still have a family relationship which requires respect. It is, of course, true that replacing the mother as nearest relative will not change their actual relationship. But the right to respect for family life goes deeper than that: the state is not permitted to interfere with that right unless this is

    1. in accordance with the law,

    2. in pursuit of a legitimate aim, and

    3. proportionate to that aim.

    The protection of the health and welfare of a young man who is unable to make decisions for himself must be a legitimate aim for this purpose. But irrespective of Article 6, the parent also has a right under Article 8 to be involved in the decision making process: see W v United Kingdom., above; McMichael v United Kingdom (1995) 20 EHRR 205; and most recently, TP&KM v United Kingdom [2001] 2 FCR 289, paras 72:

    The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.

    In that case, the failure of the local authority to disclose (or seek the courtís guidance about disclosing) the video of a child psychiatristís interview with the child, so as to give the mother a proper opportunity of challenging the evidence upon which their suspicions of child abuse were based, meant that she was not adequately involved in the decision-making process about the care of her daughter.

  47. Article 8 also confers a right to respect for private life. Adults such as C have that right as much as anyone else. Indeed, many would think it more at risk, and therefore more worthy of respect by the authorities if, because of their mental disabilities, they are unable to protect it for themselves. But both his and his motherís right to respect for their family life under Article 8, and the motherís right to a fair trial under Article 6, would constitute legitimate aims of interference with Cís right to respect for his private life, provided as always that the interference was proportionate.

  48. Hence both the common law and the Convention require that a balance be struck between the various interests involved. These are the confidentiality of the information sought; the proper administration of justice; the motherís right of access to legal advice to enable her to decide whether or not to exercise a right which is likely to lead to legal proceedings against her if she does so; the rights of both C and his mother to respect for their family life and adequate involvement in decision-making processes about it; Cís right to respect for his private life; and the protection of Cís health and welfare. In some cases there might also be an interest in the protection of other people, but that has not been seriously suggested here.

  49. Cís interest in protecting the confidentiality of personal information about himself must not be under-estimated. It is all too easy for professionals and parents to regard children and incapacitated adults as having no independent interests of their own: as objects rather than subjects. But we are not concerned here with the publication of information to the whole wide world. There is a clear distinction between disclosure to the media with a view to publication to all and sundry and disclosure in confidence to those with a proper interest in having the information in question. We are concerned here only with the latter. The issue is only whether the circle should be widened from those professionals with whom this information has already been shared (possibly without much conscious thought being given to the balance of interests involved) to include the person who is probably closest to him in fact as well as in law and who has a statutory role in his future and to those professionally advising her. C also has an interest in having his own wishes and feelings respected. It would be different in this case if he had the capacity to give or withhold consent to the disclosure: any objection from him would have to be weighed in the balance against the other interests, although as W v Edgell shows, it would not be decisive. C also has an interest in being protected from a risk of harm to his health or welfare which would stem from disclosure; but it is important not to confuse a possible risk of harm to his health or welfare from being discharged from guardianship with a possible risk of harm from disclosing the information sought. As Re D shows, he also has an interest in decisions about his future being properly informed.

  50. That balance would not lead in every case to the disclosure of all the information a relative might possibly want, still less to a fishing exercise amongst the local authorityís files. But in most cases it would lead to the disclosure of the basic statutory guardianship documentation. In this case it must also lead to the particular disclosure sought. There is no suggestion that C has any objection to his mother and her advisers being properly informed about his health and welfare. There is no suggestion of any risk to his health and welfare arising from this. The mother and her advisers have sought access to the information which her own psychiatric and social work experts need in order properly to advise her. That limits both the context and the content of disclosure in a way which strikes a proper balance between the competing interests.

  51. For those reasons I would allow this appeal. I would grant the relief sought in relation to the disclosure of the information required by the experts instructed by the mother to those experts and to the mother and her legal advisers.

    Lord Justice Clarke

  52. I entirely agree with the reasoning and conclusions of Hale LJ. I therefore agree that this appeal should be allowed for the reasons which she has given. On the narrow point upon which there is a difference between the views expressed by Hale and Kennedy LJJ, I prefer those of Hale LJ for the reasons which she has given. I would therefore make the order which she proposes.

    Lord Justice Kennedy

  53. I gratefully adopt Hale LJís analysis of the fact and the law, and indeed of the issues which arise on this appeal, but I regret to say that I do not share her view as to where the balance lies. In paragraph 41 of her judgment she sets out the case advanced by Mr. Murray Hunt for the mother. He says that if the mother exercises her right to discharge C an application will be made to displace her, the two are linked, and she needs to have proper access to legal advice before she sets the process in action. All of that I accept, but it also needs to be recognised that in reality any relevant application to displace the mother could only succeed if it could be shown that she acted irresponsibly; in other words that she sought his discharge against the advice of her own expert advisers, who are being given access to all of the material they consider to be relevant, which is in fact all of the material she now wants to see.

  54. For present purposes I need not deal in detail with the authorityís argument as to whether a displacement application would be a determination of her rights and obligations for the purpose of article 6, and can concentrate instead on the authorityís other submission that there is not yet, and may never be, any question of court proceedings.

  55. To my mind on the facts as we know them there is no reason to distinguish between access to legal advice upon discharge and access to legal advice upon a displacement application because the two indeed go hand in hand in the way I have sought to emphasise. But I do not accept that the mother cannot lose her dispute with the local authority about whether or not to discharge C without losing her status as his nearest relative. It all depends on whether, in the opinion of the court, she has acted responsibly in seeking his discharge.

  56. I accept and endorse what is said by Hale LJ as to article 8, respect for family life, and about the need to find legitimate reasons for interfering with the right of a disadvantaged adult to have respect for his private life. It is precisely because I wish to safeguard that right so far as possible and for as long as possible without doing injustice to the mother that I would not at this stage be prepared to order disclosure of the material to anyone other than her expert advisers.


Cases

JT v United Kingdom, Application No 26494/95, 30 March 2000; W v Edgell [1990] Ch 359; B (A) v B (L) (Mental Health Patient) [1980] 1 WLR 116; Re D (Adoption Reports: Confidentiality) [1996] AC 593; Re B (Disclosure to Other Parties), 19 July 2001; Golder v United Kingdom (1975) 1 EHRR 524; Raymond v Honey [1983] 1 AC 1; R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198; R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 WLR 1622; R v Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443; W v United Kingdom (1977) 10 EHRR 29; Re S (Hospital Patient: Courtís Jurisdiction [1995] Fam 27; McMichael v United Kingdom (1995) 20 EHRR 205; TP&KM v United Kingdom [2001] 2 FCR 289

Legislations

Mental Health Act 1983: s.2, s.7, s.11, s.12, s.20, s.23, s.29

Mental Health Act 1959: s.34(1)

European Convention on Human Rights: Art.6, Art.8

County Court Rules: Order 49, rule 12

Representations

Murray Hunt Esq (instructed by Messrs Bindman & Partners) for the Appellant

Alan Maclean Esq (Instructed by Plymouth City Council) for the 1st Respondent

Miss Aswini Weereratne (instructed by The Official Solicitor) for the Interested Party


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